2018 QCCA 3, 2018 QCCA 3

Larose c. R. 2018 QCCA 3 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006597-171 (460-01-032142-170) MINUTES OF THE HEARING DATE: January 4, 2018 THE HONOURABLE PATRICK HEALY, J.A. PETITIONER COUNSEL MICHAEL LAROSE Mtre PASCALE GAUTHIER (Gauthier, Piette et associé

s) RESPONDENT COUNSEL HER MAJESTY THE QUEEN Mtre frédérique le colletter (Directeur des poursuites criminelles et pénales) DESCRIPTION: Motion for leave to appeal from a judgment rendered on December 15, 2017, by the Honourable Serge Champoux of the Quebec Court, District of Bedford. (Art. 675(1) a ) (ii) Cr.C. and 21 et seq. R.C.A.C.M. ) Clerk: Mihary Andrianaivo Courtroom: RC.18

HEARING 9:43 Start of the hearing. Mtre Pascale Gauthier withdraws paragraphs 5.1, 5.2 et 5.3 from her motion as they refer to errors of law, which do not require leave to appeal. As a result, Me Gauthier would like to amend the title of her motion to read as follows: « Requête pour permission d’appeler d’une déclaration de culpabilité comportant des questions de faits ». The Judge takes note. 9:44 Intervention by Mtre Frédérique Le Colletter. 9:45 Submission by Mtre Gauthier as to the alleged errors of fact set out in paragraphs 5.4, 5.5 et 5.6 of her motion. 9:51 Submission by Mtre Le Colletter.

Me Gauthier does not have any rebuttal. 9:54 BY THE JUDGE : The judgment will be rendered in the course of the day and subsequently emailed to the Parties. Conclusion of the hearing. JUDGMENT : See page 3. Mihary Andrianaivo Clerk BY THE JUDGE JUDGMENT [ 1 ] The proposed grounds of appeal are stated in six sub-paragraphs of paragraph 5 of the present motion. Questions of law [ 2 ] The three alleged errors of law [1] concern decisions within the discretion of the trial judge. As they are described as questions of law, leave is not required.

On the hearing of this motion the appellant undertook to file a notice of appeal on these questions within the delay of thirty days from the date of judgment at first instance. Questions of fact [ 3 ] Two of the proposed questions of fact [2] concern evidence of identification. The petitioner submits that there is an arguable ground of appeal that the verdict on this question at trial was unreasonable.

Leave is granted on the two grounds identified in the present motion as 5.4 and 5.5. [ 4 ] The ground presented in this motion as 5.6 seeks only to reopen a question of fact that were determined conclusively by the trial judge. A motion for leave to appeal on a question of fact must disclose not only a viable question for consideration by this Court but a viable chance of success on the merits. This ground fails on the first point and thus on the second too.

THEREFORE, THE UNDERSIGNED: [ 5 ] ACKNOWLEDGES that the Petitioner may file a notice of appeal on the grounds 5.1, 5.2 and 5.3 in the present motion before January 16, 2018, as leave is not required on questions of law. [ 6 ] GRANTS leave to appeal on grounds 5.4 and 5.5 of the present motion. [ 7 ] DISMISSES leave to appeal on ground 5.6. PATRICK HEALY , J.A.