2019 QCCQ 3312, 2019 QCCQ 3312

Ville de Ville-Marie c. Gagnon 2019 QCCQ 3312 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF TÉMISCAMINGUE LOCALITY OF VILLE-MARIE “Criminal and Penal Division” No.: 610-61-017045-178 DATE: May 27, 2019 ______________________________________________________________________ PRESIDING: THE HONOURABLE CLAUDE BOULIANNE, P.J.P. ______________________________________________________________________ VILLE DE VILLE-MARIE Prosecution v.

GILBERT GAGNON Defendant ______________________________________________________________________ JUDGMENT ON AN APPLICATION FOR REVOCATION OF JUDGMENT ______________________________________________________________________ [ 1 ] After the defendant was involved in an accident on March 18, 2017, he was charged with failing to give to the peace officer or to the person having sustained injury or damage, his name and address, the number of his licence, his registration certificate and his certificate of insurance, thereby contravening s. 170 of the Highway Safety Code . [1]

SUMMARY [ 2 ] The defendant was convicted by default on January 24, 2018. He then filed an application for revocation of judgment on May 8, 2018, stating that he learned of the judgment on April 24. [ 3 ] The defendant completed sections 3 and 4 of the sworn document and alleges the following reasons, in French: [ translation ] 3. I could not attend court to defend myself for the following reasons: - The notice of hearing was never hand-delivered to me, I never knew that the case was going to trial, and therefore I could not defend myself.

Moreover, my address changed and I had my mail forwarded but still received nothing. 4. I contest the merits of the conviction against me because: - I was not charged under the right

section of the law. - I gave the peace officer all the necessary information. [ 4 ] The defendant’s application for revocation was heard on January 24, 2019. The prosecution contests the application and following the parties’ submissions, the decision was taken under advisement. BACKGROUND [ 5 ] A Sûreté du Québec officer served the defendant with the statement of offence on April 6, 2017. The defendant’s address on the statement is 365 Lakeshore, North Bay. [ 6 ] On April 17, 2017, the defendant entered a plea of not guilty in the

section of the statement of offence entitled [ translation ] “Answer”. He entered 317-365 Lakeshore Dr., North Bay as his address. [ 7 ] On August 1, 2017, the defendant was sent a notice of hearing by mail, after the information collected from the police was verified, to his home at 365 Lakeshore in North Bay. The notice of hearing indicated that the defendant was to appear at the Ville-Marie courthouse on October 17, 2017, in room 1.01, at 9:30 a.m., for the hearing of his case.

[ 8 ] On September 7, 2017, Ms. Sophie Foster, a court office employee at the Ville-Marie courthouse, hand-delivered a copy of the notice of hearing for October 17, 2017, to the defendant, who showed up at the office counter that day. On the copy of the file, she indicated that she hand-delivered the document to the defendant and added her initials. [ 9 ] On October 17, 2017, the defendant was absent and his failure to appear was recorded.

At the prosecution’s request, the file was postponed to January 24, 2018. [ 10 ] On January 24, 2018, after filing the statement and hearing the two prosecution witnesses, the Honourable Jacques Barbès convicted the defendant and fined him $200 plus costs. He was given 60 days to pay the amount. [ 11 ] On May 8, 2018, the defendant filed an application for revocation of judgment to be presented on June 19, 2018. He claims that he learned about the judgment against him on April 24, 2018. [ 12 ] On June 19, the defendant was represented by Mtre Jean-François Lacasse.

The hearing on the application for revocation was postponed to October 10, 2018, at the request of the defence, who waived the inherent time requirements. [ 13 ] On October 10, 2018, Mtre Lacasse filed an application to cease representing in this case. The application was granted and the defendant, who wished to consult a lawyer, asked that the hearing of the application for revocation be postponed to January 24, 2019. [ 14 ] On January 24, 2019, Mtre Lacasse again represented the defendant during the hearing of the application for revocation.

The hearing proceeded and the Court took the decision under advisement. EVIDENCE ON THE APPLICATION FOR REVOCATION OF JUDGMENT [ 15 ] The defence called two witnesses during the hearing: Ms. Sophie Foster and the defendant, Mr. Gilbert Gagnon. [ 16 ] Ms. Foster’s testimony can be summarized as follows: [ 17 ] She works at the court office at the Ville-Marie courthouse and is the person who sent the defendant in this case the notice of hearing for October 17, 2018. She sent the notice by regular mail on August 1, 2017. The defendant’s address is in Ontario and was verified beforehand by the Sûreté du Québec.

The address on file at that time was 365 Lakeshore, North Bay, in the province of Ontario. [ 18 ] On September 7, 2017, the defendant showed up at the office counter. She knows the defendant and asked him if he had received the notice. The defendant replied that he had not, so she used the opportunity to hand-deliver a copy of the notice of hearing to the defendant. She noted that information in the file and added her initials. [ 19 ] The defendant’s testimony can be summarized as follows: [ 20 ] He never received the notice of hearing concerning this offence.

He explained that he had previously informed the court office of the Ville-Marie courthouse that he was having problems with the regular mail. [ 21 ] He does not remember meeting Ms. Foster on September 7, 2017, and denies that he was hand-delivered a notice of hearing. Moreover, he questions Ms.

Foster’s signature on the document at issue, because it is totally different from her usual handwriting. [ 22 ] With respect to the offence with which he is charged under s. 170 of the Highway Safety Code , he testified that he did not leave the scene of the accident willingly, but because the people at the scene were hostile and he was terrified. He also said that he gave the police the necessary information.

ANALYSIS [ 23 ] The rule is that the Court must grant an application for revocation of judgment only if it fully satisfies art. 250 of the Code of Penal Procedure , failing which the principle of finality of judgments applies. [ 24 ] According to the case law, an application for revocation of judgment in favour of a defendant convicted by default under the Code of Penal Procedure is based on the Code of Civil Procedure . Therefore, the application is divided into two separate steps, which includes the grounds for revocation and the grounds in support of the defence . [ 25 ] To summarize, the defendant must: 1.

Establish the absence of service or that he took every step that a reasonable person would have taken to follow up on his file; 2. Establish a ground of defence against the merits of the judgment. [ 26 ] With respect to the first step in the application for revocation of judgment, that of service, it is for the defendant to prove, on a balance of probabilities, that in the circumstances it was impossible for him to be heard. The judge must determine, based on the facts of the case, whether the grounds are sufficiently serious to revoke the judgment rendered.

The Court then conducts the analysis in the second step. [ 27 ] After reviewing the evidence as a whole, the Court accepts the following facts for the purpose of its decision-making process. [ 28 ] The notice of hearing was sent on August 1, 2017, to the defendant’s address, which had been verified by the police. That address was similar to the one provided by the defendant when he entered his plea, except for the apartment number. [ 29 ] Ms. Foster’s testimony is highly credible when she states that she hand-delivered a copy of the notice to the defendant on September 7, 2017.

She remembers that meeting well, knows the defendant, and filed an annotated document referring to that service.

[ 30 ] The defendant merely denied the meeting in general without providing further details on whether or not he was present at the Ville-Marie courthouse that day. A little later in his testimony, he admitted that he had difficulty remembering the events precisely because they took place over two years ago. [ 31 ] The Court also does not know how the defendant learned about the April 24, 2018, judgment.

This perplexes the Court because the notice of judgment was sent by regular mail and the address in the court record, on the date of the judgment, is 365 Lakeshore, North Bay. [ 32 ] After analyzing the first step, the Court concludes that the defendant has not discharged his burden of proving that there was no service. [ 33 ] The Court therefore has no sufficiently serious ground to grant this application for revocation of judgment. In the circumstances, it is unnecessary to analyze the second step of the application.

FOR THE REASONS ABOVE, THE COURT: [ 34 ] DISMISSES, with costs fixed by regulation, the defendant’s application for revocation of judgment. __________________________________ CLAUDE BOULIANNE, P.J.P. Mtre Eric Daoust Daoust Parayre avocats inc. Counsel for the prosecution Mtre Jean-François Lacasse Lacasse Jean-François avocat Counsel for the defendant Date of hearing: January 24, 2019