2024 QCCS 89, 2024 QCCS 89

Wilner c. Director of Criminal and Penal Prosecutions 2024 QCCS 89 SUPERIOR COURT (Criminal and Penal Division) CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL N o : 500-36-010533-233 (500-61-550371-224) DATE: January 18, 2024 ______________________________________________________________________ PRESIDING : THE HONOURABLE JAMES L. BRUNTON, J.S.C. ______________________________________________________________________ SACHA WILNER Appellant c.

DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS Respondent ______________________________________________________________________ JUDGEMENT ______________________________________________________________________ A. CONTEXT [ 1 ] Mr. Wilner was found guilty on December 21, 2022, by default, of having contravened s.327 of the Highway Safety Code (having committed an action that endangered human life). A motion seeking the revocation of that judgement was dismissed on March 9, 2023. Mr.

Wilner appeals that decision in the present file. [ 2 ] At first instance on the revocation motion, two factors were contested by the respondent – Mr. Wilner had not provided a valid reasoning for being absent at his trial and his purported defence did not establish that it would be useful to hold a second trial. B. THE REASON FOR MR. WILNER’S ABSENCE AT TRIAL [ 3 ] From the court’s record, supplemented by Mr. Wilner’s testimony before the revocation judge, the following chronology can be established: July 18, 2021: alleged offence occurred. Jan. 15, 2022: statement of offence is served on Mr. Wilner.

June 2, 2022: a notice is sent to Mr. Wilner’s address indicating that a trial date has been set for July 19, 2022. June 8, 2022: Mr. Wilner contacts the office of the DPCP and seeks a postponement of the trial as he is not available on Tuesdays. In his testimony, he added that he requested a Wednesday trial date. July 19, 2022: while Mr. Wilner is absent, the Court grants his postponement request. The trial is set to Wednesday, December 21, 2022. July 22, 2022: a notice is sent to Mr. Wilner’s address indicating the new trial date, December 21, 2022. [ 4 ] From this point, Mr.

Wilner’s recollection of events becomes confusing. One can infer that he would have indicated, on June 8, 2022, that not only did he wish his trial to be set to a Wednesday, but that he also indicated to the DPCP a period of time, which presumably included the date of December 21, 2022, when he would be in Toronto. [ 5 ] The document in the file prepared by the DPCP concerning the June 8, 2022, contact with Mr. Wilner confirms that he stated he was not available on Tuesdays.

While it does not specifically refer to his request to have the trial on a Wednesday, one can infer he did indeed request this because the trial was re-set to a Wednesday, December 21, 2022. There is no mention or confirmation of the non- availability due to the Toronto trip. [ 6 ] Mr. Wilner testified that, shortly after his return from Toronto, he learned, on January 4 th or 5 th , 2023, that he had been found

guilty during the ex parte trial held on December 21, 2022. [ 7 ] The revocation hearing judge noted that Mr. Wilner acknowledged having received by mail the notice of the original trial date and of the notice of conviction. The only notice he would not have received was that of July 22, 2022, which contained the new December trial date. The revocation hearing judge noted that Mr. Wilner had not testified to having any mail reception problems nor that he had ever been the victim of mail theft. The judge described Mr.

Wilner’s testimony as confusing and not credible on the issue of not having received the July 22, 2022, notice. C. THE POTENTIAL DEFENCE [ 8 ] The prosecution’s evidence consisted of the written statement of the complainant which was annexed to the statement of offence. [ 9 ] The complainant was a police officer who was driving an unmarked police vehicle at approximately 20h27 on Sunday, July 18, 2021, in a westerly direction on Highway 40. [ 10 ] He observed a vehicle driven by Mr. Wilner enter upon the highway from a service entrance. Mr.

Wilner crossed a double-line, did not signal and immediately crossed two lanes to find himself in the extreme left, rapid third lane, directly in front of the complainant. Cars in all three lanes had to break abruptly in order to avoid a collision. [ 11 ] Mr. Wilner speeded off. He again crossed double-lines in taking the St.Laurent exit, no 71. He tailgated the vehicle in from of him. He then re-entered upon Highway 40. He passed a vehicle on the right before speeding off. [ 12 ] Nearing exit 66 on Highway 15, Mr.

Wilner crossed a continuous white line and cut off a vehicle in the left lane of the exit causing this driver to break abruptly in order to avoid a collision. Mr. Wilner then again crossed solid white line to pass another driver. [ 13 ] Mr. Wilner cut in front of a line of vehicles while passing over solid double white lines. [ 14 ] Once Mr. Wilner was on the Island of Montreal, he respected the speed limit and traffic signs. [ 15 ] Before the revocation hearing judge, Mr. Wilner confirmed that he embarked on Highway 40 at the Crémazie entrance. It was a Sunday. He used his turn indicators.

He confirms that he went directly to the extreme left speed lane. He did not cut anyone off because there were no cars behind him. He confirms that he proceeded to go onto Décarie and he took the Jean-Talon exit. At no time did he speed. [ 16 ] The revocation hearing judge described this portion of the appellant’s testimony as incoherent and not truly contradictory. He concluded that there was no credible evidence to establish that it would be useful to hold a second trial. D.

ANALYSIS [ 17 ] This is a borderline case which deals with an alleged serious contravention of the Safety Highway Code . [ 18 ] Beginning with the second issue considered by the revocation hearing judge – whether the proof established that it would be useful to hold a second trial – the Court would respectfully disagree with the judgement under appeal. [ 19 ] First, the testimony of Mr. Wilner did contradict the version of the complainant. While the roads traveled by Mr. Wilner’s vehicle were identical in both versions, what was happening on those roads was not.

The complainant described dangerous maneuvers causing multiple cars to break abruptly. Mr. Wilner described no cars behind him and no incidents which were remotely dangerous. One would think that these contradictory versions would have to be resolved by a trial judge as opposed to a revocation hearing judge, whose role is not to apply the principles of W(D). [ 20 ] Furthermore, s.327 of the Highway Safety Code prohibits actions that endanger human life and safety or property.

While the statement of offence indicated s.327, it appeared to specify that one was dealing with an action susceptible of endangering human life as opposed to safety or property. Was a defence available to the effect that, while safety and property were endangered, there was a reasonable doubt that human life was so affected. [ 21 ] Turning to the first issue dealt with by the revocation hearing judge – the reason(

s) for missing the trial date – this Court respectfully disagrees with the judgement under appeal. [ 22 ] While the version of events related by the appellant was confusing as noted by the revocation hearing judge, a contextual analysis of all the evidence should have led to a finding that the appellant had met his burden on a balance of probabilities. [ 23 ] The evidence indicated that the appellant had acted rapidly and appropriately when he was informed of the first trial date and of the existence of the default judgement.

He also acted quickly and appropriately during the management of the revocation motion itself. [ 24 ] These actions support the inference that the appellant was not attempting to avoid his trial and was truthful when he testified that he never received the July 22, 2022, notice of the new trial date.

AS A CONSEQUENCE, THE COURT : [ 25 ] GRANTS the appeal, without costs. [ 26 ] GRANTS the revocation of the default judgement rendered on December 21, 2022 in file 500-61-550371-224. [ 27 ] ORDERS the parties to appear in courtroom 5.08 of the Montreal Courthouse, located at 1 East, Notre-Dame Street, in Montreal, district of Montreal, on Wednesday, February 7, 2024, at 09h30, for the purpose of setting a trial date in file 500-61-550371-224.

_________________________________ James L. Brunton, J.S.C. Mr. Sacha Wilner Self-represented Me Marie-Claude Huot Counsel for the Respondent Date of hearing : January 17, 2024