2016 QCCA 147, 2016 QCCA 147

D'Amico c. R. 2016 QCCA 147 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006072-167 (500-01-009195-089) MINUTES OF THE HEARING DATE: January 21, 2016 THE HONOURABLE ROBERT M. MAINVILLE, J.A. PETITIONER ATTORNEY GIOVANNI D’AMICO Mtre PHILIPE KNERR (Schurman Longo Grenier) RESPONDENT ATTORNEY HER MAJESTY THE QUEEN Mtre DIONISIOS GALIATSATOS (Directeur des poursuites criminelles et pénales) DESCRIPTION: Motion for leave to appeal a sentence Clerk: Shirley Thomas Courtroom: RC-18

HEARING 9: 40 Commencement of the hearing. Identification of counsel. 9: 40 Representations by Mtre Knerr. 9: 41 Exchanges between the Judge and the lawyers. 9: 43 By the Judge: Judgment – see page 3. 9 h 44 Conclusion of the hearing. SHIRLEY THOMAS Clerk BY THE JUDGE JUDGMENT [ 1 ] The applicant, Giovanni D’Amico submits a motion under paragraph 675(1)

b) of the Criminal Code leave to appeal the sentences imposed on December 16, 2015 by judge Isabelle Rheault of the Court of Quebec. [ 2 ] On October 21, 2014, the trial judge found the applicant guilty on five counts related to various sexual assaults. On November 21, 2014, the applicant appealed those convictions as of right on questions of law.

On January 27, 2015, the Honourable Justice Mark Schrager, J.C.A. granted the applicant’s motion for leave to appeal the convictions on grounds involving questions of mixed fact and law. [ 3 ] In these circumstances, pursuant to subsection 55(1) of the Rules of the Court of Quebec in criminal matters , it is appropriate to refer the motion for leave to appeal the sentences to the panel of this Court which will hear the merits of the appeal of the convictions. [ 4 ] I reproduce here for reference purposes the provisions of Rules 56, 57, 58 and 59: 56

(1) A Judge who grants or refers a motion for leave to appeal from a sentence may, with the consent of the parties, allow the appeal to be heard without factums, on the basis of the fast track procedure.

(2) In referring the motion or, if applicable, the appeal to the Court, the Judge shall establish a timetable for the filing, in quadruplicate and after service on the other party, of the documents that stand in lieu of the factum.

(3) If the documents are not filed before the time limit has passed, the Clerk shall file a certificate of default in the record and shall thereafter refuse any documents from the defaulting party. A notice of the filing of this certificate shall be delivered immediately to the Chief Justice and the judges who are to hear the motion or the appeal. 57 The appellant shall file the following documents: (

a) the motion for leave to appeal; (

b) the indictment; (

c) the sentence, including the reasons and the conclusion; (

d) the depositions from the sentencing hearing, if any; (

e) any other relevant remarks of the trial judge and counsel in the course of submissions as to the sentence; and (

f) the questionnaire on the form in

Schedule 1, duly completed. 58 At least three weeks before the date of the hearing of the motion or the appeal, the respondent may also serve the questionnaire, duly completed, on the appellant and file the questionnaire at the Office of the Court, in quadruplicate. 59

(1) The parties may include an argument no longer than 10 pages in length with their documents. It shall have at least one and one-

half spaces between the lines, with the exception of quotations, which shall be single-spaced and indented. The characters shall be in 12- point font size, and there shall be no more than 12 characters per 2.5 cm.

(2) A judge may order that an argument be prepared when the issues raised by the appeal so warrant.

FOR THESE REASONS, the undersigned: [ 5 ] REFERS the motion for leave to appeal the sentences to the panel of this Court which will hear the merits of the appeal of the convictions . [ 6 ] ORDERS that the matter be heard without factums, on the basis of the fast track procedure. [ 7 ] ORDERS the applicant to file before April 29, 2016, in quadruplicate and after service on the other party, the documents set out under Rule 57, a copy of this order, his book of authorities and an argument no longer that 10 pages in length. [ 8 ] ORDERS the respondent to file before May 31 2016, in quadruplicate and after service on the other party, the questionnaire provided for in Rule 58, a book of authorities and an argument no longer that 10 pages in length.

ROBERT M. MAINVILLE , J.A.