2012 QCCA 1908, 2012 QCCA 1908

Purgal c. Montreal (City of) 2012 QCCA 1908 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-005279-128 ( 500-36-005945-111 ) MINUTES OF THE HEARING DATE: October 26, 2012 THE HONOURABLE ALLAN R. HILTON, J.A. PETITIONER ATTORNEY ROMANA ANA PURGAL Mtre Julius Grey (ABSENT) GREY & CASGRAIN RESPONDENT ATTORNEY THE CITY OF MONTREAL Mtre Francis Paradis (ABSENT) Cour municipale de Montréal

MOTION FOR LEAVE TO APPEAL FROM A JUDGMENT RENDERED ON SEPTEMBER 20, 2012, BY THE HON. JOHN FRASER MARTIN OF THE SUPERIOR COURT DISTRICT OF MONTREAL Clerk: Annick Nguyen Court Room: ——- HEARING Continuation of October 23, 2012, hearing. Parties are advised that judgment will be rendered on the minutes of the hearing and their presence in Court is not required. Judgment – See page 3. Annick Nguyen Clerk JUDGMENT [ 1 ] The petitioner seeks leave to appeal a judgment of the Superior Court (the Honourable Mr. Justice Fraser Martin) that dismissed her appeal from a judgment of the Municipal Court of Montreal (the Honourable Judge Philippe Clément) finding her guilty of two

summary conviction offences of assaulting a police officer contrary to paragraph 270(1) (

a) Cr.C . The charges in question, which it was alleged took place at two separate locations, arise out of a heated dispute that occurred after a police officer ticketed the petitioner's son for having illegally parked in an area reserved for busses. [ 2 ] As the result of his implication in the fracas, the petitioner's son was charged with obstruction of justice, but the same trial judge acquitted him based on absence of proof beyond a reasonable doubt of the required element of mens rea of the offence. [ 3 ] The sentence imposed on the petitioner, a 60 year-old lady with no prior criminal record, was that of an absolute discharge. [ 4 ] A proposed appeal pursuant to

section 839 Cr.C . only lies on questions of law alone. The stringent criteria for granting leave have been stated and consistently applied by judges of this Court. They are conveniently set out in the judgment of Cournoyer, J.A. ad hoc in Bouchard v. The Queen [1] as follows: 5 Les critères qui encadrent une demande en vertu de l'

article 839 du Code criminel ont été résumés par le juge Dalphond dans R. c.

Lebel : Comme le rappelait notre Cour dans l'arrêt R. c. Huneault (1984), (QC CA), 17 C.C.C. (3d) 270, pour obtenir lapermission d'en appeler en vertu de l'art. 839 C. cr., l'appelant doit non seulement soulever une question de droit mais aussi démontrerqu'elle est : (1) suffisamment importante, ou (2) qu'elle comprend des circonstances particulières qui justifient que la Cour d'appelautorise l'appel, ou (3) qu'elle comprend un motif suffisant qui nécessite l'intervention de la Cour d'appel.

La question de savoir quelledéduction peut être tirée des faits n'est pas une question de droit seulement, mais plutôt une question mixte de droit et de fait. 6 Dans l'arrêt R. c. R.(R.), le juge Doherty de la Cour d'appel de l'Ontario procède à une étude exhaustive de la jurisprudencecanadienne. Il résume le critère encadrant une demande en vertu de l'article 839 C.cr. en ces termes : In

summary, leave to appeal pursuant to s. 839 should be granted sparingly. There is no single litmus test that can identify all cases inwhich leave should be granted. There are, however, two key variables - the significance of the legal issues raised to the generaladministration of criminal justice, and the merits of the proposed grounds of appeal. On the one hand, if the issues have significance tothe administration of justice beyond the particular case, then leave to appeal may be granted even if the merits are not particularly strong,though the grounds must at least be arguable.

On the other hand, where the merits appear very strong, leave to appeal may be grantedeven if the issues have no general importance, especially if the convictions in issue are serious and the applicant is facing a significantdeprivation of his or her liberty. [5] In the present matter, the petitioner argues that the Superior Court judge failed to adequately consider the issues submitted forconsideration arising out of the judgment of the trial judge, and that he further addressed extraneous issues that were irrelevant to theappeal. [6] Dealing with the latter submission immediately, I would note that none of the appeal judge's comments to which the petitionertakes objection was dispositive of the appeal.

In any event, they are obiter dicta and have no bearing on the outcome of the petitioner'smotion for leave to appeal. [7] The trial judge concluded that he did not believe the testimony of the petitioner, which was essentially to the effect that shenever struck the police officer. Broadly speaking, the petitioner argues that the trial judge failed, however, to properly consider thesecond branch of the three-prong test set out in R. v. W.D.,[2] namely, whether the evidence of the defence taken as a whole raised areasonable doubt as to the guilt of the petitioner.

In this respect, the petitioner's son also testified, essentially to the same effect as hismother. [8] As I have mentioned, the trial judge did acquit the petitioner's son of obstruction of justice, but at no point in his judgment didthe judge say he believed the entirety of the son's testimony.

Rather, it was apparent that the trial judge concluded that the son did nothave the necessary guilty intent to commit the offence of obstruction of justice when he came to his mother's assistance during herimbroglio with the police officer. [9] It is the case that the trial judge did not specifically mention the three stage analysis of W.D., but I think it can be assumed thata trial judge who spends his days hearing cases of this nature is familiar with the applicable concepts and does not have to engage in aritual repetition of them each time when rendering judgment. [10] The testimony of the police officer who contended he was assaulted, together with that of the ambulance driver who saw thepetitioner kick the police officer, satisfied the trial judge that the two counts in the information had been made out. [11] As for the petitioner's argument that she was convicted on the second count for an offence with which she was not charged, thesimple answer is contained in the reasons of the appeal judge: in any case of doubt it belongs to an accused to obtain particulars duringthe trial and not to complain after it has terminated and judgment is rendered.

The facts giving rise to the verdict on the second count fallwell within the ambit of the count as drafted. [12] At best, the most that can be said is that the trial judge misapplied applicable principles of law, but that affirmation can onlysucceed if one assumes the trial judge was unaware or chose to ignore the applicable principles.

My reading of his judgment does notlead me to that conclusion. [13] In his judgment dismissing the appeal, the Superior Court judge, having read the entire transcript of the trial, analyzed theMunicipal Court judgment in light of the judge's findings and said this: [13] In the case at bar a verbal warning had been given to Appellant’s son and it had been ignored. A contravention was delivered. Iobserved in the course of argument that I’m not even sure that he was “parked” in the technical sense of that term.

Surely the question ofwhether he was parked and therefore the legitimacy of the ticket is something that could have been debated in Municipal Court without afracas in the street. And a fracas in the street there was. It was totally unjustifiable. [14] […] [15] The police officer was perfectly within his rights to insist that your client identify herself. Your client was in turn under theobligation to do so. It was not for her to scream, to swear, whether in Polish, English or in French at the officer and not to spit in hisgeneral direction. [16] All of this the Appellant denied doing.

Unfortunately for her, the judge found that she did. In the first incident, the police officerdrew his truncheon, in order he said, to protect his space. This was a technique that he had learned at Nicolet. In order to maintain acertain distance between the officer and the person challenging him. He did so because he was struck on the arm by the Appellant. Thefirst judge accepted that version of events. [17] You haven’t contested that strike on the arm. At least in the absence on some plausible explanation it is sufficient to constitute an

assault. The actus reus is in the application of force. An accidental strike may constitute a defence if it had been raised. It was not. [18] Having purposely or voluntarily done the striking is all that is necessary to establish intent. So much for the first infraction. [19] The elements of the second infraction reside in the confrontation over identification and the incident in the ambulance.

You choose to employ in this matter a technique that is used over and over again namely that you put the trial judge or more precisely the judgment in trial. [20] You know as well as I do that there are a raft of cases which hold that you are entitled to know the reasoning that underlies the first judge’s conclusion. One is entitled to know why one has been found guilty. I don’t know any rule, and it’s perhaps unfortunate, which requires the judge to dedicate specific paragraphs to issues of credibility.

I wish judges would do so because it would make life considerably simpler at this stage. [21] I have read the first judge’s judgment, several times.

He has his style, he has his way of saying things but what comes through for me and what is manifestly clear for me is that the first judge (I used the word “implicit” in the course of our verbal exchanges this morning) accepted the testimony of Constable Claveau as far as the physical assaults were concerned, One of these assaults was corroborated by the ambulance attendant. [22] I don’t attach any importance to the issue of the police officer’s recollection of whether or not he had a drink with the ambulance attendant sometime in the past. Perhaps he did.

With respect it does not matter. [23] I read the testimony and the attempts made during the questioning to raise issues of credibility out of the relationship the ambulance attendant and Constable Claveau. The first judge apparently found no basis for this. On a reading of the transcript neither could I. [24] […]It is clear as far as I am concerned. The essential elements of the two offences which form the basis of the principal appeal have, as far as I am concerned, been established. I think the judge was perfectly correct in finding them to have been established beyond a reasonable doubt.

He may have been more elegant in the manner in which he said what he had to say and in answering your objections. On the questions on the credibility, he may have been more forthright than he was. Mr. Paradis suggests that that is not his way. While I do not know, I can only say that that would be more likely to my way. [25] It is perfectly clear that he analysed the proof properly. The question is not whether I would have come to the same conclusions as him. I am not obliged to answer that question.

But I cannot find in his conclusions any egregious error on his part when I analyse his decision against the testimony as it unfolded before him. [ 14 ] In applying the criteria for granting leave to the judgment of the appeal court judge, I conclude that the proposed appeal does not raise any issues of significance to the administration of justice, and that even if I were to characterize the proposed grounds of appeal as strong, the convictions in issue are not serious and cause no deprivation of the petitioner's liberty inasmuch as the trial judge granted her an unconditional discharge. [ 15 ] The motion for leave to appeal is therefore dismissed.

ALLAN R. HILTON, J.A.