2014 QCCA 1095, 2014 QCCA 1095

Hugues c. R. 2014 QCCA 1095 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-005599-145 (705-36-000572-139) (11CC000146) MINUTES OF THE HEARING DATE: May 28, 2014 THE HONOURABLE MR. JUSTICE NICHOLAS KASIRER PETITIONER ATTORNEY SCOTT HUGUES Mtre Dylan Jones BORO, POLNICKY, LIGHTER RESPONDENT ATTORNEY HER MAJESTY THE QUEEN Mtre Caroline Charron DUFRESNE HÉBERT COMEAU INC.

MOTION FOR LEAVE TO APPEAL A CONVICTION PRONOUNCED ON JANUARY 30, 2014 (REASONS OF THE JUDGMENT DATED MARCH 21, 2014) BY THE HONOURABLE MADAM JUSTICE HÉLÈNE DI SALVO OF THE SUPERIOR COURT, DISTRICT OF JOLIETTE (SECTION 839 OF THE CRIMINAL CODE) MOTION FOR A STAY OF THE ORDER OF PROHIBITION FROM OPERATING A MOTOR VEHICLE PENDING APPEAL (SECTION 261 CR. C.) Clerk: Linda Côté Courtroom: RC.18 HEARING 09:34: Commencement of the hearing. Identification of counsel. 09:35: Submissions by Mtre Dylan Jones. 09:56: Submissions by Mtre Caroline Charron. 10:07: Reply by Mtre Jones. 10:10: Recess. 10:20: Resumption. 10:21: Judgment – see page 3. 10:30: Conclusion of the hearing. Linda Côté Clerk

BY THE COURT : JUDGMENT [1] Scott Hughes seeks leave to appeal from a judgment of the Superior Court, District of Joliette (the Honourable Hélène DiSalvo), which dismissed his appeal from a

summary conviction, pursuant to s. 253(

b) Cr.C., rendered by the Municipal Court ofMascouche (the Honourable Claude Lemire). In addition to leave, the petitioner also seeks a stay of the order prohibiting him fromoperating a motor vehicle pending appeal. [2] The petitioner states his grounds of appeal as follows: 1. The learned Justice [Di Salvo] erred in law by misapplying the legal concepts of mere presence in a motor vehicle and realisticrisk of putting a motor vehicle in motion as set out by the Supreme Court of Canada in R. v. Boudreault, 2012 SCC 56; 2.

The learned Justice [Di Salvo] erred in concluding that Judge Lemire’s decision contained a complete analysis of the credibilityof the appellant’s testimony as set out by the Supreme Court of Canada in R. v. W.(D.)., (SCC), [1991] 1 S.C.R. 742. [3] Leave to appeal may be granted from the judgment of the Superior Court, albeit sparingly, on any ground that involves aquestion of law alone pursuant to s. 839 Cr.C.

Moreover, it is generally agreed that a question of law alone does not suffice: the requisitequestion should either be one of importance beyond the particular case or, if not, one in respect of which the merits of the proposedappeal would be strong and that the matter be of serious consequence for the petitioner (R. v. R.R., 2008 ONCA 497, para. [37], as notedby Cournoyer, J.A. (ad hoc) in Bouchard v.

R., 2011 QCCA 30, para. [6]). *** [4] The first ground: Did the judge of the Superior Court err in law by misapplying the legal concepts relating to the mere presencein a motor vehicle and realistic risk of danger as set out in Boudreault? [5] In my view, despite its formulation, the first ground of appeal seeks to raise questions of fact relating to whether or not thepetitioner had care and control of the vehicle in the circumstances.

In particular, the petitioner seeks to challenge the finding of theexistence of a realistic risk of danger to persons or property given that the petitioner was “merely present” in the back seat of a car andhad no intention to drive. I am of the view that this ground fails to disclose a question of law. [6] It is true that the presence of a realistic risk of danger to persons or property is a legally required element of the offence as setout in Boudreault, para. [33]. The judge of the Superior Court made no mistake in this regard, recalling correctly, in my view, the law onpoint. [7] It is true too that in R. v.

Penno, (SCC), [1990] 2 S.C.R. 865, 877 (cited with approval in Boudreault, para.[49]), Lamer C.J. observed that the law does not go so far as to punish the mere presence in a motor vehicle of an individual whoseability to drive is impaired. But here again, the judge of the Superior Court made no mistake. She observed that the conviction inMunicipal Court rested not on proof of mere presence of the petitioner in the car, but on a number of facts that suggested that thispresence constituted a realistic risk of danger in the circumstances.

She noted that the trial judge found, among other facts relevant to therisk, that the petitioner’s judgment had been altered by the amount of alcohol he had consumed; that he had the car keys in his handwhile in the car; that he got into his car without telling his friend; that he did not use his cellular phone to communicate with anyone; thathe wanted to go to his friend’s home at the time he got into the car; that the driver’s seat was accessible; and the absence of a concreteand reliable alternative plan to ensure his safe way home, given that no effort had been made to call a taxi (para. [22] of the reasons forjudgment in the Superior Court, alluding to para. [42] of the trial judgment). [8] As the Supreme Court reminds us at para. [50] of Boudreault, “[t]he existence or not of a realistic risk of danger is a finding offact”.

Courts can be expected to come to different conclusions, on the facts, as to whether such a risk exists.[1] [9] Unlike the present case, Boudreault did raise questions of law, as stated by Fish J. at para. [8] of his reasons, including thequestion as to whether realistic risk of danger was an essential element of the offence of care and control under s. 253(1). Fish J. settledthis matter as to the correct legal test in deciding that it did. He went on to explain: [11] The existence of a realistic risk of danger is a matter of fact.

In this case, the trial judge, applying the correct legal test, found as afact that there was no such risk. [Emphasis in the original.] [10] In our case, after “applying the correct legal test”, the trial judge found “as a fact” that there was such a risk.

The judge of theSuperior Court agreed, and noted that the trial judge made no reviewable error in coming to that conclusion. [11] The petitioner contends the two courts below were mistaken in finding that his presence in the back seat constituted a realisticrisk of danger to persons or property, but he has failed to disclose how that finding of fact reflects an error of law that is relevant under s.839 Cr.C.

[ 12 ] The first ground of appeal thus does not justify granting leave. *** [ 13 ] The second ground: Did the judge of the Superior Court err in concluding that the judgment of the Municipal Court contained a complete analysis of the appellant’s testimony as set out in R. v. W.D .? [ 14 ] I recognize that a failure to apply the principles in R. v.

W.D. correctly could raise a question of law in circumstances in which a conviction did not rest on proof of guilt beyond a reasonable doubt. [ 15 ] However, the petitioner has failed to show me how the judge of the Municipal Court erred in analyzing the petitioner’s testimony. The trial judge alluded to the whole of the evidence, including the petitioner's testimony in para. [25]. He made no explicit finding on credibility.

But at para. [42], it is plain that he rejected the argument of the existence of an alternative plan because the petitioner had taken no steps to call a taxi, not necessarily because he did not believe the petitioner who said he had no intention to drive home. There was a realistic risk of danger, given in particular the petitioner's weakened judgment, notwithstanding the fact that he had no intention to drive home. [ 16 ] The judge of the Superior Court stated the essentials of the requirements set forth in W.D. at paragraph [25] of her reasons.

While it is true that the judge did not further discourse on the matter, the petitioner has failed to convince me that she erred in her evaluation of the trial judge’s analysis of the petitioner’s testimony in this regard or that she erred in deciding – explicitly – that the trial judge had correctly applied the relevant jurisprudence (para. [50]). [ 17 ] It is not enough for the petitioner to raise a question of law in the abstract: at a minimum, he is required to show how that question had an impact on the outcome of the case.

This has not been done. [ 18 ] While respect of the presumption of innocence and the crown’s burden of proof can raise questions of law, the petitioner has failed to show circumstances that justify granting leave in this case pursuant to s. 839 as interpreted by R. v.

R.R .: he has not shown the significance of the legal issues raised to the general administration of criminal justice, nor has he shown the existence of a strong argument of the proposed grounds of appeal. [ 19 ] The second and final ground does not therefore justify granting leave. [ 20 ] FOR THE AFOREMENTIONED REASONS , the Court: [ 21 ] DISMISSES the motion for leave to appeal; [ 22 ] DISMISSES the motion for a stay of the order of prohibition from operating a motor vehicle, it being without further object. NICHOLAS KASIRER, J.A.