2023 QCCA 1450, 2023 QCCA 1450

Nikolakakis c. Director of Criminal and Penal Prosecutions 2023 QCCA 1450 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-008079-236 (760-36-000861-222) DATE: November 17, 2023 BEFORE THE HONOURABLE STEPHEN W. HAMILTON, J.A. ANGELO NIKOLAKAKIS APPLICANT – Appellant v. DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS RESPONDENT – Respondent JUDGMENT [ 1 ] The Applicant was charged with a speeding offence under the Highway Safety Code [1] when a vehicle registered in his name was captured by a photo radar system traveling at 120 km/h in a 90 km/h zone.

He received the statement of offence at his home but did not respond to it. The case proceeded by default and he was found guilty of the offence on March 22, 2022. [ 2 ] When he received notice of the default judgment, the Applicant filed an application to have it revoked. Judge Nathalie Boisvert, Presiding Justice of the Peace sitting in the Court of Quebec (District of Beauharnois), heard the application on June 1, 2022, and dismissed it. [ 3 ] The Applicant then appealed to the Superior Court.

By judgment rendered on August 24, 2023, Justice Yvan Poulin dismissed his appeal. [2] [ 4 ] The Applicant now seeks leave to appeal to the Court. *** [ 5 ] The appeal is a second-level appeal governed by

Article 291 of the Code of Penal Procedure ( C.P.P. ). It can only raise questions of law, which must be of sufficient interest to the Court. [ 6 ] The proposed appeal is in the context of a judgment refusing to revoke the initial default judgment. Revocation of a default judgment rendered under the Code of Penal Procedure is governed by Articles 250 et s. C.P.P. The first paragraph of

Article 250 C.P.P. provides as follows: 250. Where a defendant convicted by default was, for a serious reason, prevented from submitting his defence , he may apply for revocation of judgment to the judge who rendered it or, if he is not available or does not have jurisdiction to hear an application for revocation, to a judge having jurisdiction to render such a judgment in the judicial district where the judgment was rendered. 250.

Le défendeur qui a été déclaré coupable par défaut et qui, pour un motif sérieux, n’a pu présenter sa défense peut demander la rétractation de ce jugement au juge qui l’a rendu ou, s’il n’est pas disponible ou n’a pas la compétence d’attribution pour entendre une demande de rétractation, à un juge ayant compétence pour le rendre dans le district judiciaire où le jugement a été rendu . […] […] [Emphasis added] [Soulignement ajouté] [ 7 ] The judge in first instance concluded that the Applicant was not prevented from submitting his defence.

The Applicant admitted that he received the statement of offence, which included the prescribed notice as to what would happen if he did not respond, assumed that he would receive notice of a trial even if he did not respond, and on that basis chose not to respond. The judge characterized this

decision as an error in law and a lack of diligence by the Applicant: Donc, tous ces documents-là sont transmis avec le constant d’infraction. Donc, la personne diligente qui reçoit le constat d’infraction doit prendre la peine de lire toutes ces informations et de s’assurer. Dans ce cas-ci, de 1) vous avez commis une erreur en droit, puis de 2) la preuve me révèle que vous avez pas été ce qui était des plus diligents parce que vous me dites « il y avait un paquet de feuilles » puis vous me dites « c’est probablement ça ».

Mais à partir de ce moment-là, comme c’est un recours extraordinaire, je peux pas vous accorder la requête en rétractation de jugement. Je dois même pas me rendre à l’étape de : avez-vous une défense au fond? [ 8 ] The Applicant did not contest this conclusion in the Superior Court and does not raise this as a ground of appeal. That should be sufficient to resolve the matter. But the parties went on to debate two issues in the courts below, which the Applicant now seeks to bring before the Court.

In my view, neither of those issues was relevant in the courts below, and neither justifies granting leave to appeal. [ 9 ] The first proposed ground of appeal is that the Superior Court was wrong in holding that the term “witnessed personally”, in the second paragraph of

Article 163 C.P.P. , includes observation of recordings taken by or through a photo radar device. [ 10 ] It is important to put this argument in context. There appears to have been some confusion in the lower courts as to whether the Applicant had been deemed to have transmitted a plea of not guilty under the first paragraph of

Article 163 C.P.P. or whether he had been deemed not to contest the proceedings under the second paragraph of the same article: 163. A defendant who transmits neither a plea nor the whole amount of the fine and costs requested is deemed to have transmitted a plea of not guilty . 163. Le défendeur qui ne transmet ni plaidoyer, ni la totalité du montant d’amende et de frais réclamé, est réputé avoir transmis un plaidoyer de non-culpabilité . However, a defendant who does not enter a plea or, if applicable, send the declaration referred to in

section 592.1 or 592.1.1 of the Highway Safety Code (chapter C-24.2 ) and does not pay the whole or any part of the fine and costs requested is deemed not to contest the proceedings if Toutefois, est réputé ne pas contester la poursuite le défendeur qui ne transmet ni plaidoyer, ni, le cas échéant, la déclaration visée à l’

article 592.1 ou 592.1.1 du Code de la sécurité routière (

chapitre C-24.2 ), ni la totalité ou une

partie du montant d’amende et de frais réclamé lorsque les conditions suivantes sont réunies : (1) the offence comes under Division II of

Chapter VI; 1. il s’agit d’une infraction visée à la

section II du

chapitre VI ; (2) the offence was witnessed personally by one or more peace officers or persons entrusted with the enforcement of

an Act; 2. l’infraction a été constatée personnellement par un ou plusieurs agents de la paix ou personnes chargées de l’application de la loi ; (3) the statement of offence was served on the defendant in accordance with any of the paragraphs of

article 157.2 , as the case may be; and 3. le constat d’infraction a été signifié au défendeur conformément à l’un des paragraphes de l’article 157.2 , selon le cas (4) the defendant was 18 years of age or over at the time the offence was committed. 4. le défendeur avait 18 ans ou plus au moment de la perpétration de l’infraction . The second paragraph does not apply if the defendant is a driver or a renter identified in accordance with

section 592.1 or 592.1.1 of the Highway Safety Code . Le deuxième alinéa ne s’applique pas lorsque le défendeur est un conducteur ou un locataire qui a été désigné conformément à l’

article 592.1 ou 592.1.1 du Code de la sécurité routière . [Emphasis added] [Soulignements ajoutés] [ 11 ] Both lower courts proceeded on the basis that the Applicant had been deemed not to contest and that the case proceeded under the “no contest” regime. The issue raised by the Applicant was whether the second condition under the second paragraph of

Article 163 C.P.P. had been met. He argued that it had not and that the case should not have proceeded under the “no contest” regime. Both lower courts concluded that the police officer monitoring the photo radar did personally witness the offence such that the second condition was met. The Applicant now wishes to submit this issue to the Court. [ 12 ] The Respondent argues that the issue is moot. It admits that the third condition under the second paragraph of

Article 163 C.P.P. was not met. It had not obtained proof of service when the statement of offence was initially sent to (and in fact received by) the Applicant and so proceeded with service by public notice under

Article 22.1 C.P.P. Such service is not in accordance with

Article 157.2 C.P.P. and therefore does not meet the third condition. As a result, the case could not proceed under the “no contest” regime. It was

therefore a moot point whether the second condition was also not met. [ 13 ] In any event, the Respondent confirms that, in fact, the case did not proceed under the “no contest” regime. This is illustrated by the fact that there was a default trial before the Justice of the Peace in the District of Beauharnois, pursuant to

Article 187 C.P.P. The Respondent explains that there is a different, more expeditious procedure under the “no contest” regime. [ 14 ] The Respondent adds that even when a defendant is deemed to have transmitted a plea of not guilty, he is not entitled to receive notice of the hearing under

Article 166 C.P.P. [3] The procedure followed was therefore correct. [ 15 ] In my view, the Respondent’s arguments are well-founded. The issue of whether the police officer monitoring the photo radar can be said to have personally witnessed the offence therefore is not relevant and there was no procedural error in the fact that the Applicant did not receive notice of the trial. [ 16 ] The Applicant also seeks to raise the issue of the constitutional validity of the “no contest” regime under

Section 11(

d) of the Canadian Charter of Rights and Freedoms . Because the default trial did not in fact proceed under the “no contest” regime, this argument is also moot. [ 17 ] Moreover, the lower courts did not decide the merits of the constitutional argument. It was raised very late in the proceedings before the Justice of the Peace, and she did not deal with it. The Superior Court judge did not consider the argument because it was being raised for the first time on appeal before him.

While this is not strictly accurate – it had been had mentioned at the end of the hearing before the Justice of the Peace –, it was not fully argued in the lower court and was not addressed in her judgment. [ 18 ] Further, the lower courts could not have decided the constitutional issue because the Applicant never sent to the Attorney General the notice under

Article 76 of the Code of Civil Procedure that is required before raising a constitutional issue. [ 19 ] In these circumstances, it is not appropriate to grant leave to appeal to argue either of the two issues that the Applicant seeks to raise before the Court. FOR THESE REASONS, THE UNDERSIGNED: [ 20 ] DISMISSES the application for leave to appeal, with costs. STEPHEN W. HAMILTON, J.A. Mtre Jeremy Lieberman DAVIES WARD PHILLIPS & VINEBERG For Applicant Mtre François Chrétien DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For Respondent Date of hearing: November 10, 2023