R v Berthelot, 2015 MBCA 89

Citation: R v Berthelot, 2015 MBCA 89 Date: 20150928 Docket: AR15-30-08454 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : HER MAJESTY THE QUEEN ) G. R. Champagne ) for the Appellant Respondent ) ) C. R. Savage - and - ) for the Respondent ) ) Chambers motion heard: STEEVY BERTHELOT ) September 10, 2015 ) (Accused) Appellant ) Decision pronounced: ) September 28, 2015 MICHEL A.

MONNIN JA [ 1 ] This is an application for leave to appeal sentence and, if leave is granted, for judicial interim release pending the hearing of the appeal . [ 2 ] The accused seeks to be released pending an appeal from a sentence of 15 months’ incarceration, along with a victim surcharge of $1,800 plus $18 in court costs with time to pay of two years and a stand-alone restitution order payable to Walmart in the amount of $8,000. [ 3 ] The accused pled guilty to nine counts of fraudulently using credit cards and was sentenced on September 3, 2015. [ 4 ] At the sentencing hearing, the Crown sought the sentence eventually imposed, while the accused argued that he should be allowed to serve his sentence conditionally. [ 5 ] In order for me to consider granting the accused his release, he must first convince me that leave to appeal should be granted.

To do so, he must convince me that he has an arguable case to present on appeal. To do this, the accused must demonstrate that the sentencing judge committed an error in principle, or failed to consider a relevant factor or overemphasized one or more of the appropriate factors or pronounced an unfit sentence.

See R v Gill , 2010 MBCA 92 . [ 6 ] If I grant leave, pursuant to section 679(4) of the Criminal Code , the accused must then establish, in addition to his appeal having merit, that his remaining in custody will cause unnecessary hardship, that he will surrender himself into custody in accordance with a release order, and finally, that his detention is not necessary in the public interest. [ 7 ] The accused has available to him the sum of $12,000 to post as surety for his release. [ 8 ] The Crown is opposed to the accused’s release and that opposition is based on its argument that the accused does not have an arguable case to advance on appeal.

More particularly, it argues that the sentence imposed was not unfit and that a failure to impose a conditional sentence is not a sufficient ground on which to argue that the accused has an arguable case. [ 9 ] The accused argues that as he is a youthful offender with no prior convictions, he should have been considered as a good candidate for a conditional sentence and that the failure to impose such a sentence was an error in principle. [ 10 ] Acknowledging that the threshold for granting leave to appeal is relatively low, I am prepared to accept that the accused has a case with some merit and accordingly, I grant leave to appeal. [ 11 ] The accused will therefore be granted judicial interim release on the following conditions: his own recognizance in the amount of $1,000 and a cash surety in the amount of $12,000; that his appeal factum be filed no later than October 30, 2015; that he keep the peace and be of good behaviour; and that he attend personally in Court at the hearing of the appeal and as further directed.

The accused shall report to the Clerk of the Court of Appeal, Room 330, Law Courts Building, Winnipeg, no later than ten minutes before the scheduled hearing of the appeal.

[ 12 ] Should the Crown be of the view that additional conditions be set as part of this release order, I am prepared to consider such a request and make changes if appropriate. JA