2022 QCCA 744, 2022 QCCA 744

Berlingieri c. R. 2022 QCCA 744 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-007778-226 (500-01-150040-175) DATE: April 5, 2022 BEFORE THE HONOURABLE PETER KALICHMAN, J.A. JONATHAN BERLINGIERI APPLICANT – Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutor JUDGMENT [ 1 ] On February 22, 2021, the Applicant pleaded guilty before the Honourable Nathalie Duchesneau of the Court of Quebec, Criminal and Penal Division, District of Montreal, to the following infractions: ➢ one count of possession of a controlled substance ( section 4(1) (3)(

a) of the Controlled Drugs and Substances Act [1] ); and ➢ one count of possession of a restricted firearm together with readily accessible ammunition without being the holder of an authorization or licence to possess such a firearm or its registration certificate (section 95(1)(2)(

a) Cr.c .). [ 2 ] On March 24, 2022, he was sentenced to thirty months of imprisonment (three months of imprisonment on the first count and thirty months on the second, to be served concurrently). [2] [ 3 ] The Applicant seeks leave to appeal the sentence and interim release pending the determination of his appeal. The Respondent contests both motions. However, the contestation is limited to arguing that the grounds raised are frivolous. The Respondent concedes that if leave to appeal is granted, the remaining criteria for interim release are satisfied.

The Motion for Leave to Appeal [ 4 ] A person who is convicted in proceedings brought by indictment may appeal the sentence with leave of the Court of Appeal or one of its judges in accordance with section 675(1)(

b) Cr.c . [ 5 ] Leave to appeal is granted when it is demonstrated that the grounds raised are sufficiently important to justify the Court’s intervention. [3] [ 6 ] The Applicant raises several grounds of appeal but emphasizes two in particular that, according to him, constitute errors in principle. [ 7 ] First, he argues that the judge gave no weight whatsoever to rehabilitation as a mitigating factor.

He focuses on her observation at paragraph 71 of the Judgment, that he made no particular effort at rehabilitation which, he maintains, contradicts her earlier finding that he had in fact made efforts in this regard. [ 8 ] The second ground of appeal that the Applicant stresses is the judge’s failure to recognize and apply the gap principle. He submits that the judge erred in considering his drug-related conviction in 2005, twelve years before the infractions at issue here, as an aggravating factor. [ 9 ] The Respondent argues that the grounds raised by the Applicant are frivolous.

In its view, when the Judgment is read as a whole, it is clear that the judge committed no error in principle and that she was well within her discretion as a sentencing judge to attach more or less weight to the various mitigating or aggravating factors at issue. [ 10 ] Without commenting on the Applicant’s chances of success in appeal, I am satisfied that he raises grounds that meet the requirements for leave to appeal to be granted. Motion for Interim Release Pending Determination of Appeal

[ 11 ] In order to obtain interim release pending the determination of his appeal, the Applicant must establish: (

i) That his appeal is not frivolous; (ii) That he will surrender himself into custody in accordance with the terms of the order; and (iii) That his detention is not necessary in the public interest. [4] [ 12 ] Since the presumption of innocence no longer applies, the burden is on the party seeking interim release to establish the requisite conditions. [5] The fact that the Respondent concedes that these requirements are met does not relieve the Applicant of the burden to convince me. [ 13 ] The first criterion is not particularly demanding.

A frivolous appeal is one that is baseless. [6] I am satisfied that at least certain grounds of appeal are arguable.

The Applicant thus meets the first criterion. [ 14 ] As far as the second criterion is concerned, the Applicant must establish that he will not flee the jurisdiction and that he will surrender himself into custody as required. [7] R elevant factors for consideration include the “history of attendance in court or compliance with court orders, the appellant’s age, health, employment status, housing status, family circumstances, whether the appellant has a passport, the appellant’s criminal record, and any history of untruthfulness”. [8] [ 15 ] The Applicant, who has no pending charges, was released on bail subject to conditions in first instance.

He did not breach those conditions during the entirety of the proceedings in first instance which lasted over five years. [ 16 ] The Applicant submits that several other factors also militate in favour of his interim release, including his employment status, his family situation, his housing and his health.

More specifically, he indicates the following: ➢ He established and operates a successful business; ➢ His mother and sister depend on him in various ways, including financial assistance; ➢ He has a son who spends every second weekend as well as vacations with him; ➢ He has various health issues, including severe sleep disorders; and ➢ He has lived at the same address with his mother and sister since 2017. [ 17 ] While I agree that, to some extent, these factors assist the Applicant in meeting the second criterion, I have concerns about his housing situation.

In the affidavit filed in support of the Motion for Interim Release, he states the following: “Since February 8, 2017 I have resided at [...], Montréal, Quebec [...] with my mother and sister, and I intend to reside there if released”. [ 18 ] However, from July 2017 until at least June, 2019, the conditions of his release included the obligation to reside at a different address and to not change addresses without the prior authorization of the Court.

When questioned on this discrepancy, the Applicant’s attorney offered no explanation. [ 19 ] The fact that the Applicant’s affidavit contradicts the conditions of his release on bail in first instance, raises concerns in regards to the stability of his housing situation but, more importantly, the truthfulness of his representations. [ 20 ] Notwithstanding these concerns, the fact that the Appellant did not breach the conditions of his release for over five years, satisfies me that he would surrender himself into custody if required to do so.

Accordingly, the second criterion is thus met. [ 21 ] The third criterion, whether or not detention is necessary in the public interest, has two components: public safety and public confidence in the administration of justice. [9] It involves a balancing of two competing interests: enforceability and reviewability. [10] [ 22 ] The enforceability interest reflects the idea that “[p]ublic confidence in the administration of justice requires that judgments be enforced”. [11] In considering this interest, the seriousness of the crime plays an important role and firearm-related offences, like the one at issue her, are clearly “serious crimes”. [12] At the same time, the absence of flight or public safety risks have the effect of attenuating the enforceability interest. [13] [ 23 ] The reviewability interest reflects the notion that “public confidence in the administration of justice requires that judgments be reviewed and that errors, if any, be corrected”. [14] In this regard, the strength of the appeal can be assessed beyond the mere determination of whether or not the grounds are frivolous. [15] The length of the sentence is also a relevant consideration when it is established that a significant portion of it will have been served by the time the appeal is heard. [16] [ 24 ] In balancing the competing factors of enforceability and reviewability, appellate judges should keep in mind that public confidence is to be measured through the eyes of a reasonable member of the public “who is thoughtful, dispassionate, informed of the circumstances of the case and respectful of society’s fundamental values”. [17] [ 25 ] In applying these principles I conclude that on the facts of this case, the interest of reviewability outweighs the interest of enforceability.

The Applicant has therefore established that his detention pending the determination of his appeal is not necessary in the public interest.

[ 26 ] In reaching this conclusion, I am mindful of the seriousness of the offence as well as the Applicant’s criminal record, which stretches from 1999 to 2005, principally for drug-related offences, as well as three counts of failing to comply with an undertaking in connection with an identity fraud conviction in 2012. In addition, while the grounds of appeal are not frivolous, neither can they be said to be strong. [ 27 ] My conclusion is primarily based on the following considerations: ➢ The absence of flight or safety risks.

The fact that the Applicant was not detained throughout the five years in which the proceedings in first instance took place and did not breach his bail conditions, is significant. Based on this and subject to the imposition of strict conditions, the Applicant has convinced me that his interim release does not compromise public safety; ➢ Due to the delays in obtaining the transcripts from the hearing in first instance, the attorneys estimate that it may take up to a year for the appeal to be heard.

This is considerable given the length of the sentence; and ➢ Though it is not determinative, the position taken by the Respondent is certainly significant considering that it acts for the state in pursuing criminal and penal cases in the public interest.

While the Respondent contests leave to appeal, it concedes that the criteria for interim release are otherwise satisfied. [ 28 ] Finally, it should be added that the conditions to be imposed on the Applicant have been jointly submitted. [18] FOR THESE REASONS, THE UNDERSIGNED: Motion for Leave to Appeal [ 29 ] GRANTS the Motion for leave to appeal the sentence rendered on March 24, 2022, by the Honourable Nathalie Duchesneau, J.C.Q.; [ 30 ] ORDERS the Applicant, after notification to the Respondent, to file with the Office of the Court, no later than May 16, 2022, five copies of the documents mentioned in

section 60 R.C.A.Q.C.M . and an argument of no more than 15 pages; [ 31 ] ORDERS the Respondent, after notification to the Applicant, to file with the Office of the Court, no later than June 27, 2022, five copies of an argument of no more than 15 pages; [ 32 ] ORDERS the parties, in accordance with sections 18 and 60 R.C.A.Q.C.M . , to file their argument drafted on good quality white letter paper (21.5 cm by 28 cm) with at least one and one-half spaces between the lines (except for quotations, which shall be single- spaced and indented). The typeface shall be 12-point Arial font for the entire text.

Exceptionally, 11-point Arial font may be used for quotations and 10-point Arial font may be used for footnotes. The margins shall be no less than 2.5 cm. The text shall be reproduced on one side only of each sheet; [ 33 ] ORDERS that the documents filed include a cover page and a table of contents with pages numbered consecutively; [ 34 ] ALLOWS the Respondent, as provided by the second paragraph of

section 60 R.C.A.Q.C.M . , to notify the duly completed questionnaire to the Applicant and file five copies of the questionnaire with the Office of the Court, no later than 21 days before the date of the hearing of the motion for leave or the appeal; [ 35 ] ORDERS the parties to attach a technological version as a USB key to each copy of their documents filed in lieu of the brief. This version must permit keyword searches and include hyperlinks from the table of contents to the documents filed in lieu of the brief and from the argument to the schedules.

The USB key shall be identified in the same matter as a pleading (s. 12 R.C.A.Q.C.M . ) ; [ 36 ] REMINDS the parties that they may notify and file a book of authorities with the Office of the Court at least 30 days before the hearing (s. 46 R.C.A.Q.C.M. ). The book of authorities shall be prepared in accordance with

section 44 R.C.A.Q.C.M .; [ 37 ] DEFERS the fixing of a hearing date to the Master of the roles, once the case is ready to proceed. Motion for Interim Release Pending Determination of Appeal [ 38 ] GRANTS the Motion for interim release pending the outcome of the appeal; [ 39 ] ORDERS the release of the Appellant subject to the following conditions: i. To reside at [...], Montreal, Quebec [...]; ii. To remain in the Province of Quebec at all times; iii. Not to change his address without the prior authorization of the Court or one of its judges; iv. To surrender any and all passports to the Clerk (Greffe) of the Court of Quebec;

v. Not to file any passport application for the duration of these proceedings; vi. To maintain a cash deposit of $5000.00 with the Court of Quebec; vii. To not possess or carry, for any reason, offensive or restricted weapons, or imitation weapons, including starting pistols and pellet guns, firearms, cross-bows, prohibited weapons, restricted weapons, prohibited devices, ammunition, prohibited ammunition, explosive substances, knives (except in restaurants and for a legitimate purpose) or edged weapons; viii. To not drink any alcoholic beverages; ix. To not be in bars, discotheques or other licensed premises; x.

To neither possess nor use narcotics or drugs, except in accordance with a validly obtained medical prescription; xi. To not be in places where drugs or other illegal substances are used or sold; xii. To surrender himself immediately into custody when so ordered by the Court or one of its judges; xiii. Upon dismissal or withdrawal of his appeal, to surrender himself into custody within 24 hours; [ 40 ] ORDERS that an undertaking to adhere to these conditions be given by the Appellant to a justice of the peace assigned to such matters before he is released. PETER KALICHMAN, J.A.

Mtre Leonard Waxman For the Applicant Mtre Marianna Ferraro DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For the Respondent Date of hearing: April 1, 2022