2011 QCCA 1827, 2011 QCCA 1827

Unofficial English Translation Bolduc c. Montréal (Ville de) 2011 QCCA 1827 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-004597-108 (500-36-005161-099) (M.C.: (760-738-425) DATE: October 4, 2011 CORAM: THE HONOURABLE MARC BEAUREGARD, J.A. YVES-MARIE MORISSETTE, J.A. JACQUES A. LÉGER, J.A. MARC-ANDRÉ BOLDUC APPELLANT – Appellant – defendant v. VILLE DE MONTRÉAL RESPONDENT – Respondent – prosecutrix and VINCENT GAUTRAIS and DOMINIQUE JAAR INTERVENERS JUDGMENT [ 1 ] THE COURT: On the appellant's appeal from a judgment of the Superior Court, Montreal (the Honourable Mr.

Justice Wilbrod Claude Décarie) rendered on February 8, 2010, which dismissed a first appeal by the appellant from a judgment of the Montreal Municipal Court (Judge Pierre G. Bouchard) rendered on August 11, 2009, which had convicted the appellant for speeding; [ 2 ] For the reasons of Beauregard J.A., with which Morissette and Léger JJ.A. agree; [ 3 ] DISMISSES the appeal, without costs. MARC BEAUREGARD, J.A. YVES-MARIE MORISSETTE, J.A. JACQUES A. LÉGER, J.A.

Mtre Marie-Hélène Lamoureux (BERGEVIN, LAROCHELLE, ATTORNEYS) and Mtre Marco Labrie, legal counsel For the appellant Mtre Serge Cimon (CHAREST, GAGNIER, BIRON, DAGENAIS) For the respondent

Vincent Gautrais, personally Dominique Jaar, personally Date of hearing: April 6, 2011 REASONS OF JUSTICE BEAUREGARD [ 4 ]

Article 144 C.P.P. [1] provides that penal proceedings must be instituted by way of a statement of offence. The statement of offence is therefore the written procedure to introduce proceedings. [ 5 ] The statement may also serve as evidence of the facts alleged therein if it is in the form prescribed by regulation and if the issuing officer attests on the statement to having personally observed the facts. [ 6 ] Under

section 14 of the Regulation , [2] a statement originally drawn up in paper form must be signed by hand. [ 7 ] Conversely, a statement that is originally in electronic form is signed by the officer "in electronic form or [by] their electronic signature validation codes". [3] [ 8 ] In the present case, the part of the statement containing the attestation reads as follows: [translation] ATTESTATION SERVICE I, the undersigned, attest to having personally observed the facts listed under: [x]A [x]B [x]C [x]D [ ]E and (if applicable) attest that ___________________________ peace officer, badge number ____________ observed the facts listed under [ ]A [ ]B [ ]C [ ]D [ ]E and I have reasonable grounds to believe that the offence described under C was committed.

Name: GAGNON PASCAL Badge number: 1676 Unit: 429 Peace officer I attest to having given a copy of the statement to the defendant when the offence was perpetrated. Date of service: 05/02/2008 Time: 4:46 p.m.

Name: GAGNON PASCAL Badge number: 1676 Unit: 429 Peace officer [ 9 ] We note that the text begins with the words [translation] "I, the undersigned" and ends by the word [translation] "Name" with the officer's first and last names, capacity, badge number, and unit number. [ 10 ] The appellant submitted to the judges of the Municipal and Superior Courts – and submits to this Court as well – that the officer's signature should have been a facsimile of the signature he usually uses when signing writings. [ 11 ] This argument is groundless. I am for the most

part in agreement with the Superior Court judge, whose grounds I make my own. [ 12 ] Upon reading the statement, it becomes obvious that by putting his first and last names, badge and unit numbers at the end of the the text that begins with [translation] "I, the undersigned", the officer intended to identify himself and attest to the facts listed in the statement. [ 13 ] In truth, the appellant's actual argument resides in subparagraphs (

c) and (

h) of paragraph 8 of

section 34 of the Regulation , which applies to the present case:

34. The front of the pages or the data on the corresponding page screens in the statement of offence issued for an offence relating to the control of highway transportation, highway safety or parking violations or for an offence which a municipality is responsible for prosecuting shall contain the headings, key words, texts and spaces allowing the following particulars to be entered: ... (8) in the

section concerning the attestation of the facts and the service of the statement of offence, or in separate sections relating to the attestation and service: ... (

c) the name and capacity of the person attesting to the facts and badge number if the person is a police officer; ... (

h) the signature of the person attesting to the facts and of the person serving the statement of offence or, as the case may be, their respective signatures in electronic form or their electronic signature validation codes; if the same person attests to the facts and serves the statement of offence, an indication to that effect and the person's signature for the attestation of the facts and the service or, as the case may be, the person's signature in electronic form or the person's electronic signature validation code; [ 14 ] A statement must therefore include both the officer's signature and his or her name, capacity and badge number. [ 15 ] In actual fact, the form provided in the Regulation includes a box for the officer's signature and another for the officer's name, capacity and badge number. [ 16 ] As we saw above, however, in the form completed in this case, there was only one box, in which Officer Gagnon both signed the attestation and listed his name, capacity and badge number. [ 17 ] The appellant infers therefrom that the statement was not valid and that he therefore should not have been convicted. [ 18 ] This inference is wrong.

The form in the Regulation includes a box for the officer's signature and another for his or her identity because the Regulation provides for the case where the officer's signature is something other than his or her name, capacity and badge number. [ 19 ] When an officer's signature does not reveal his or her name, capacity and badge number, both boxes of the form in the Regulation must be completed.

If it does, however, it is pointless to require that the information already provided through the signature be provided a second time. [ 20 ] This was the notion behind the Superior Court judge’s statement that the appellant's argument was a question of form and that it must give way to substance, since the existence of one box instead of two had not caused the appellant any harm. In saying so, the Superior Court judge did not, contrary to what the appellant argues, conclude that a statement that violates the statute cannot be struck down absent harm.

He merely expressed the opinion that a defect of form that does not cause harm does not constitute a violation of the statute. [ 21 ] I would therefore dismiss the appeal, without costs. MARC BEAUREGARD, J.A.