2020 QCCA 982, 2020 QCCA 982

Giraud c. R. 2020 QCCA 982 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-007372-202 ( 500-01-156195-171 ) MINUTES OF HEARING DATE: July 31, 2020 THE HONOURABLE MARIE-JOSÉE HOGUE, J.A. APPLICANT COUNSEL Ryan Giraud Mtre Sharon Sandiford ( Silver Sandiford ) Absent RESPONDENT COUNSEL HER MAJESTY THE QUEEN Mtre RICHARD AUDET ( Director of Criminal and Penal Prosecutions ) Absent DESCRIPTION: Motion for leave to appeal from a sentence imposed on July 22nd 2020 by the Honourable Dennis Galiatsatos of the Court of Québec, Criminal Division , District of Montréal . (Section 675

(1) b) C.cr. ) Motion for release from prison (Section 679 (1) C.cr. ) Clerk at the hearing : Elisabeth Lepage Courtroom: RC-18 HEARING 9:28 Commencement of the hearing. Continuation of the hearing held on July 30, 2020. The parties were excused from appearing in Court.

BY THE JUDGE: Judgment – see page 3. 9:33 Conclusion of the hearing. Elisabeth Lepage, Clerk at the hearing JUDGMENT [ 1 ] I have before me by Ryan Giraud a Motion for Release from Custody during the conduct of his appeal against conviction (s. 679(3) Cr.C .) and his Motion for Leave to Appeal his Sentence (s. 671(1)(

b) Cr.C .). *** [ 2 ] On November 27, 2019, he was found guilty of assault with a weapon (s. 267(

a) Cr.C. ) and assault causing bodily harm (s. 267(

b) Cr.C. ). [ 3 ] On January 14, 2020, a judge of this Court granted him leave to appeal the verdict rendered at trial [1] . [ 4 ] On July 22, 2020, he was sentenced to a term of imprisonment of 14 months and a 2-year probation. [ 5 ] He is now asking for leave to appeal from this sentence as well as for his release from prison. [ 6 ] Both parties request that the Motion for Leave to Appeal be referred to the panel of the Court that will hear the appeal from the verdict, as per rule 58 of the Rules of the Court of Appeal of Quebec in Criminal Matters. [ 7 ] The Crown, however, contests the Motion for Release from custody. [ 8 ] Section 679(3) Cr.c . places the burden on an applicant to show that the appeal is not frivolous, that he will surrender himself into custody in accordance with the order, and that his detention is not necessary in the public interest. [ 9 ] Although the Crown insists on the weakness of the grounds of appeal from the verdict, it does not contest that the appeal cannot be said to be frivolous, given that such appeal was authorized by a judge of the Court. [ 10 ] Moreover, it does not argue that Mr.

Giraud will not surrender himself into custody if he is ordered to do so. [ 11 ] As such, the issue I have to decide is whether Mr. Giraud’s detention is necessary in the public interest. [ 12 ] In that respect, the Crown points out that he has been found guilty of breaches of his conditions on four occasions during the proceedings in first instance.

Two of these breaches were in relation to him being present in a park where he was not authorized to go and the two others were in relation to him consuming alcohol. [ 13 ] Although these breaches are serious, they are not, in my opinion, sufficient to conclude that Mr. Giraud’s detention is necessary in the public interest.

Furthermore, he was punished for these breaches. [ 14 ] The record shows that he was at liberty during the proceedings in first instance, including between the moment he was found guilty and the moment he was sentenced, and was then put into custody, that he respected all the other conditions imposed on him during the trial and sentencing process and that he was always present in Court when needed. [ 15 ] He agrees to respect these very same conditions and, in addition, offers that a deposit of $500 be made at the Office of the Clerk. [ 16 ] I also have to take into account the fact that given that he was sentenced to a term of imprisonment of 14 months, there is a real risk that he will have been in custody for most of these 14 months when his appeal will be heard, rendering his appeal theoretical or, at least much less meaningful. [ 17 ] Taking all these elements into consideration, I am of the view that his detention is not necessary in the public interest.

FOR THESE REASONS, THE UNDERSIGNED: On the Motion for Leave to Appeal from a Sentence [ 18 ] REFERS the Motion for Leave to Appeal from a Sentence to the panel of the Court that will hear the appeal from the verdict (file no 500-10-007245-192);

[ 19 ] DECLARES that the proceedings shall be undertaken, without briefs; [ 20 ] ORDERS the applicant, after notification to the respondent, to file with the Office of the Court, fives copies of the documents mentioned in

section 60 R.C.A.Q.C.M. and, if applicable, an argument of no more than 10 pages; [ 21 ] ORDERS the respondent, after notification to the applicant, to file with the Office of the Court, fives copies of an argument of no more than 10 pages; [ 22 ] ORDERS that the documents provided for in the rules of the court for an appeal of a sentence as well as the arguments be notified and filed at the same time than those relative to the verdict (file no 500-10-007245-192); [ 23 ] 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; [ 24 ] ORDERS that the documents filed include a cover page and a table of contents with pages numbered consecutively; [ 25 ] 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 fives 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; [ 26 ] 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. ) ; [ 27 ] 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. [ 28 ] TAKES NOTE of the parties’ consent to comply with the time limits for the notification and filing of memoranda set by this judgment, notwithstanding the suspension of the civil procedure time limits provides for in order no. 2020-4251 signed on March 15, 2020 by the chief Justice of Quebec and the Minister of Justice. [ 29 ] ALLOWS to each party a duration of 15 minutes to argue the appeal from the sentence. On the Motion for Release from Custody [ 30 ] GRANTS the Motion for Release from Custody on the following conditions: 1.

Maintain the recognizance of $1,500 without deposit made by the applicant’s mother (condition of release in first instance); 2. Make a deposit of $500 at the clerk’s office of the Court of Quebec; 3. Keep the peace, be of good behaviour and appear in Court when required; 4. Not leave the province of Quebec; 5. Deposit his passports at the clerk’s office of the Court of Quebec and not to apply for any other passport or any travel document from any country; 6. Reside at [...], Montreal, Quebec, [...], and not change address without the prior authorization of the Court; 7.

Be at this address between 10:00 pm and 6:00 am except for the purpose of legitimate employment or a medical emergency (condition of release in first instance); 8. Report to the CO South headquarters located at 980, Guy Street, Montreal, Quebec, and sign the register every week on Tuesdays (condition of release in first instance); 9. Abstain from communicating directly or indirectly with S ulei Aboullahi; 10. Abstain from being in the presence of Sulei Aboullahi; 11. Not be within 100-meter radius of Sulei Aboullahi and of the domicile, place of work and school of Sulei Aboullahi; 12.

Abstain from being in Kent Park; 13. Not possess or carry, for any reason, offensive or restricted weapons or imitation weapons, including starting pistols and pellet guns, firearms, crossbows, prohibited weapons, restricted weapons, prohibited devices, ammunition, prohibited ammunition, explosive substances, knives ( except in restaurants and for a legitimate purpose) or edged weapons. 14. Surrender to the authorities 24 hours before the hearing of his appeal. The appellant acknowledges having been informed that his failure to do so may result in the appeal being dismissed without a hearing.

[ 31 ] ORDERS that the undertaking to abide by these conditions be given before a justice of the peace assigned to such matters, before the appellant is released. MARIE-JOSÉE HOGUE, J.A.