2011 QCCA 601, 2011 QCCA 601

Unofficial English Translation Badio c. R. 2011 QCCA 601 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-004758-106 / 500-10-004759-104 / 500-10-004760-102 (500-01-002155-056 / 500-01-025942-092 / 500-01-003027-056) DATE: March 31, 2011 THE HONOURABLE ANDRÉ ROCHON, J.A. ROBERT-CHARLES BADIO APPELLANT – accused v. HER MAJESTY THE QUEEN RESPONDENT – prosecutrix JUDGMENT [ 1 ] Before me is an application for release pending judgment on an appeal pursuant to

section 679 of the Criminal Code . [ 2 ] On June 4, 2010, the appellant was convicted of the following seven counts: 1. On or about February 11, 2005, at Montreal, District of Montreal, did break and enter into a dwelling-house located at ..., with intent to commit an indictable offence therein, thereby committing an indictable offence pursuant to section 348(1) ( a )(

d) of the Criminal Code . 2. On or about February 11, 2005, at Montreal, District of Montreal, did commit robbery against M. D., using a firearm, thereby committing an indictable offence pursuant to

section 344 (

a) of the Criminal Code . 3. On or about February 11, 2005, at Montreal, District of Montreal, did confine, imprison, or forcibly seize M. D., thereby committing an indictable offence pursuant to section 279(2) ( a )of the Criminal Code . 4. On or about February 11, 2005, at Montreal, District of Montreal, did point a firearm at M. D., thereby committing an indictable offence pursuant to section 87(2) (

a) of the Criminal Code . 5. On or about February 11, 2005, at Montreal, District of Montreal, did commit robbery against L. J., using a firearm, thereby committing an indictable offence pursuant to

section 344 (

a) of the Criminal Code . 6. On or about February 11, 2005, at Montreal, District of Montreal, did confine, imprison, or forcibly seize L. J., thereby committing an indictable offence pursuant to section 279(2) (

a) of the Criminal Code . 7. On or about February 11, 2005, at Montreal, District of Montreal, did point a firearm at L. J. thereby committing an indictable offence pursuant to section 87(2) (

a) of the Criminal Code . [ 3 ] On September 21, 2010, the judge of the Court of Quebec imposed the following sentences on the appellant: Count 1: 4 years Count 2: 5 years and three months Count 3: 3 years Count 4: 1 year Count 5: 5 years and three months Count 6: 3 years Count 7: 1 year

[ 4 ] On June 4, 2010, in a second file, the judge of the Court of Quebec found the appellant guilty of simple possession of heroin. On September 21, 2010, the appellant was sentenced to six months’ imprisonment. [ 5 ] Finally, on June 4, 2010, in a third file, the judge of the Court of Quebec found the appellant guilty of the following five counts: 1. On or about February 11, 2005, at Montreal, District of Montreal, did have in his possession, for the purpose of trafficking, amphetamine tablets, thereby committing an indictable offence pursuant to section 5(2)(3)( b )(

i) of the Controlled Drug and Substances Act. 2. On or about February 11, 2005, at Montreal, District of Montreal, did have in his possession, for the purpose of trafficking, cannabis (marihuana), thereby committing an indictable offence pursuant to section 5(2)(4) of the Controlled Drug and Substances Act. 3. On or about February 11, 2005, at Montreal, District of Montreal, did have in his possession, for the purpose of trafficking, crack cocaine, thereby committing an indictable offence pursuant to section 5(2)(3)(

a) of the Controlled Drug and Substances Act. 4. On or about February 11, 2005, at Montreal, District of Montreal, did sell Sildenafil (Viagra), thereby committing an indictable offence pursuant to sections 15 and 31(

b) of the Food and Drugs Act. 5. On or about February 11, 2005, at Montreal, District of Montreal, did have in his possession, for the purpose of trafficking, ecstasy (3,4–methylenedioxyamphetamine), thereby committing an indictable offence pursuant to section 5(2)(3)( b )(

i) of the Controlled Drug and Substances Act. [ 6 ] On September 21, 2010, the judge handed down the following sentences: Count 1: 1 year of imprisonment Counts 2, 3, 4, and 5: 6 months of imprisonment [ 7 ] All the sentences in the files handed down on September 21 are to be served concurrently. [ 8 ] The appellant has appealed these convictions. [ 9 ] Without admitting the seriousness of the grounds of appeal, Crown counsel agrees that, at any rate, the appeal is not frivolous. [ 10 ] It is also admitted that the appellant will surrender himself into custody, if applicable, in accordance with the terms of the order of release. [ 11 ] The real question that this case raises is whether the appellant has established that his detention is not necessary in the public interest.

I find that the appellant has not discharged this burden. My reasons are the following. [ 12 ] This test is two-fold. As my colleague Doyon J.A. pointed out in El More v. R. , 2007 QCCA 1362 , the test addresses both the protection and safety of the public and public confidence in the administration of justice. [ 13 ] In the present case, the appellant was convicted of crimes that include elements of violence, which were perpetrated within a dwelling-house. One or several firearms were used.

The inhabitants were tied-up, confined, and robbed. [ 14 ] In the report from the prison authorities dated December 9, 2010, it is written: PUBLIC SAFETY RISK – HIGH Subject is a repeat offender currently serving a second federal sentence for amongst others, violent offences related to a home invasion. According to the Police Report, both the male and female victims were threatened with a firearm and a knife and tied up. Badio demanded money and jewellery while assaulting the victim with slaps and punches. Badio allegedly fired a shot at the front door however no bullet hole was found.

The subject's involvement is unclear according to the Court Transcripts and he may have waited outside while the offence was taking place. Nevertheless, subject's current offences reflect his continued involvement in a criminal lifestyle and association and affiliation with criminalised individuals. His offences involve planning and are considered deliberate and premeditated, are assessed as having a serious psychological and long-term impact on his victims. Subject denies the allegations against him.

Badio has been in the justice system since adolescence and has demonstrated a long standing history of deviant values, violent behaviour and criminality. We believe he has never established a stable, non-criminal adult lifestyle despite his limited criminal history however we suspect a latent, significant criminality and has had ties to a street gang in the past. In addition, he remains an untreated sexual offender with no less than 11 prior convictions for sex related offences against girls under the age of 18.

Reports indicate that he forced his victims to engage in prostitution using intimidation and he sexually assaulted one of his victims. His file chronicles numerous efforts by his CMT to encourage his participation in a meaningful Correctional Plan however he has refused to engage in such. Badio shows no understanding of his behaviour or his offender. There is currently evidence to suggest that the subject has been a perpetrator of family violence.

Under the present conditions, without any changes likely to lower the risk that he represents, the risk of violent recidivism and for public safety is seen as high. [ 15 ] The appellant's criminal record includes:

1992-12-17 Failure to comply with an undertaking. 1993-02-19 Offence of procuring. 1993-06-15 Offence of procuring. 1994-12-09 Offence of procuring and failure to comply with an undertaking. 2004-12-02 Assault and obstructing a peace officer. 2007-11-14 Simple possession of crack; Breach of undertaking (keeping the peace) 1st count; Breach of undertaking (possession of an offensive weapon) 2nd count; 2010-09-21 Sentencing for the charges that were appealed in the above- mentioned dockets. [ 16 ] In his affidavit supporting his application for release, the appellant describes his criminal record in the following terms: [ translation ] I have a criminal record that includes procurement and sexual assault in 1994 and simple possession of crack in 2007; [ 17 ] The omissions and vagueness are surprising to say the least. [ 18 ] What is more troubling in the present case is the 2007 offence of breach of undertaking for possession of a knife when he had given a specific undertaking in two of the files in appeal, including the one relating to the following charges: breaking and entering into a dwelling-house, robbery, forcible confinement, and pointing a firearm.

The undertaking is the following: [ translation ] 7.

Formally refrain from: - Possessing and bearing, for any reason whatsoever, offensive or restricted weapons, or imitations of such, including starter’s guns and pellet guns, firearms, crossbows, prohibited weapons, restricted weapons, prohibited devices, ammunition, prohibited ammunition, or explosive substances, knives (except in restaurants and for a legitimate purpose) and edged weapons. [ 19 ] Moreover, on February 11, 2005, when these offences were committed, the appellant was already bound by a probation order issued two months earlier, on December 2, 2004, in the context of his conviction for assault and obstructing a peace officer. [ 20 ] In short, the appellant committed violent crimes while he was bound by a probation order issued two months earlier, and then breached his conditions of release while he awaited his trial for these same crimes. [ 21 ] After the conviction in docket 500-01-025942-092, the Crown sought the appellant's immediate incarceration.

A debate followed during which counsel submitted to the judge that, since the events of 2005, the appellant had been accused of nothing and breached no undertakings. Here is an excerpt of the exchange in question: [ translation ] THE COURT: Look, I'm there but, listen, he had been released and, let me tell you, I am stunned. Mtre ANNE GAUVIN: No more than me. THE COURT: ... that he was released in that case but he was indeed released. Mtre ANNE GAUVIN: Yes. THE COURT: He has not been in breach. He has not been accused of anything else since then? Mtre ANNE GAUVIN: No. Mtre JOSE DORELAS:

No, Your Honour. THE COURT: No breach of condition, nothing? Okay then. I understand, listen, I think that it would not be going too far out on a limb to say that there will be some prison time. I want to give him some time to prepare his affairs and to present himself on the date in question, ready to face the sentence. So, I will leave him at large.

Mtre JOSE DORELAS: Thank you, Your Honour. [ 22 ] All these elements lead me to find that, in this case, we must seriously consider the issue of the protection and safety of the public should the appellant be released, which would also undermine the confidence of an informed public in the administration of justice. [ 23 ] FOR THESE REASONS: [ 24 ] DISMISSES the application. ANDRÉ ROCHON, J.A. Mtre Marie-Hélène Giroux MONTEROSSO, GIROUX For the appellant Mtre Mario Longpré Criminal and penal prosecutor For the respondent Date of hearing: March 24, 2011