2023 QCCA 1596, 2023 QCCA 1596

Directeur des poursuites criminelles et pénales c. Dafinei 2023 QCCA 1596 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-007694-217 (500-36-009745-202) (500-61-491635-190) DATE: December 19, 2023 CORAM: THE HONOURABLE GENEVIÈVE MARCOTTE, J.A. MARK SCHRAGER, J.A. PATRICK HEALY, J.A. JOCELYN F. RANCOURT, J.A. GUY COURNOYER, J.A. DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS APPELLANT – Respondent v. ADRIAN DAFINEI RESPONDENT – Appellant JUDGMENT * I [ 1 ] A panel of five judges heard this appeal to clarify the law in Quebec concerning the

interpretation of provincial penal offences. II [ 2 ] The respondent was charged with speeding. [1] At trial he sought to advance a defence of reasonable mistake of fact on the basis that the offence is properly characterised as strict liability. On the basis of this Court’s decision in Baie-Comeau (Ville de) v.

D’Astous , [2] the trial judge ruled that speeding is an offence of absolute liability but nevertheless examined the defence of reasonable mistake that was advanced by the respondent concerning a malfunction of the speedometer. [3] [ 3 ] While the respondent was caught speeding at 126 km/h in a 70 km/h speed zone, he claimed to have been under the impression that he was driving at 115 km/h and that, at the time of interception, his speedometer showed 112 km/h.

Some nine months later, he noticed a 16 km/h gap between his speedometer and the speed registered on his cellphone and a mechanic also confirmed this gap and testified that there was a speedometer malfunction. The trial judge rejected the respondent’s defence on the merits. [ 4 ] She also concluded that the second prong of his defence was contradictory and irreconcilable because he could not claim that the speedometer was malfunctioning at the time of the offence and argue at the same time that he presented reliable and precise evidence to the contrary based on consultation of this same speedometer.

She also noted that the respondent had admitted having driven well over the speed limit. In her view, that evidence could not raise a reasonable doubt. [4] [ 5 ] On appeal the Superior Court concluded, [5] relying on this court’s decision in Ville de St. Jérôme v. Sauvé [6] that provincial penal offences in Quebec are presumptively characterised as matters of strict liability as that term has been understood in Canada since Sault Ste. Marie . [7] The Superior Court ordered a new trial. III [ 6 ] The principle of

interpretation stated by the Superior Court has general application. It applies not only to speeding and other traffic offences but to all penal offences that are valid under provincial authority. The application of this principle may be displaced by one of two exceptions: an offence that requires proof of fault or an offence of absolute liability. These exceptions can only apply if compelled by express statutory language or by necessary implication in the legislative context. The rigour of these exceptions underscores the scope and importance of the principle that favours a characterisation of penal offences as strict liability. [ 7 ] The presumption of statutory

interpretation established in Sault Ste. Marie [8] , that in the absence of specific language indicating a contrary intention on the legislature’s part, a regulatory offence will be presumed to be one of strict liability can be traced in several decisions of the Supreme Court [9] . It was confirmed in Quebec by this Court in Ville de St. Jérôme v. Sauvé [10] and reaffirmed on three occasions. [11] The general principle of

interpretation is thus well established in Quebec. Any previous jurisprudence on the

classification of provincial penal offences that is inconsistent with it must be considered overruled. [12] [ 8 ] The general principle can be summarized in two points. First, a penal offence under the authority of provincial law in Quebec is presumptively characterised as an offence of strict liability except if the statutory language, expressly or by necessary implication, compels an

interpretation that the offence requires proof of an element of fault or is an offence of absolute liability. [13] Such an exception must be justified by the party that seeks to rely on it. Second, offences of strict liability often allow specific defences according to the terms of the particular statutory scheme in which they are found. They also allow general defences that must be proved on a balance of probabilities, which include: any ground that negates proof of the actus reus ( e.g. , involuntariness, impossibility, alibi); due diligence; reasonable mistakes of fact; mental disorder; and necessity. [ 9 ] Nothing in the text of

section 329 in the Highway Safety Code , the overall regulatory arrangement established by the National Assembly, the subject matter of the legislation, or the nature and significance of the penalty indicates an intention to displace the presumption that the offence is one of strict liability. [14] [ 10 ] This general principle eliminates ambiguity in the characterisation of provincial penal offences in Quebec except if the statutory language states, expressly or by necessary implication, that a particular offence should be characterised as one that requires proof of fault or as an offence of absolute liability.

The reasons in Ville de St. Jérôme v. Sauvé make clear that the standard for such exceptions is stringent. [15] The standard is that an exception will apply only if there is a clear indication of the legislature’s intent. IV [ 11 ] In the present case the Superior Court applied the general principle of

interpretation. In the absence of an exception that applies to

section 329 of the Highway Safety Code the Superior Court committed no error in ruling that the offence of speeding is an offence of strict liability. [ 12 ] The Superior Court nevertheless ordered a new trial because it was of the view that the trial judge had not ruled on the respondent’s defence that when he looked at the speedometer it indicated a speed of 112 km/h, thus capable of raising a reasonable doubt about the rate of speed. [ 13 ] To determine whether it was appropriate to order a new trial, it is necessary to discuss the findings made by the trial judge on the two defences put forward by the respondent: 1) malfunction of his speedometer; 2) his testimony that his speedometer indicated that his speed was 112 km/h.

Malfunction of the speedometer [ 14 ] The trial judge examined the defence of reasonable mistake advanced by the respondent with reference to the alleged malfunction of the speedometer. [ 15 ] She concluded that the malfunction was not proved on a balance of probabilities because the malfunction was not noted contemporaneously with the offence but only nine months later. That alleged defect was not confirmed by an expert and the mechanic who testified on this point relied upon mobile telephones to support his non-expert opinion.

The judge concluded that she could not take judicial notice of the reliability of a mobile phone to measure speed. In the circumstances, her rejection of this evidence is entirely sound. The respondent’s testimony with respect to his speed [ 16 ] The respondent testified that he believed that he was travelling at a speed of not more than 115 km/h and that his speedometer showed a speed of 112 km/h. [ 17 ] The trial judge rejected that defence because in her view it was incompatible and contradicted the other defence that he advanced.

Quite apart from the weaknesses in the mechanic’s evidence, the trial judge ruled that the respondent could not at the same time claim that the speedometer was defective and yet rely on the same speedometer to establish his speed. [ 18 ] Contrary to the trial judge’s conclusion, the Superior Court was of the view that these defences were not contradictory but complementary. [16] We agree for two reasons. [ 19 ] First, even where defences appear contradictory, they may nevertheless be considered as explained by Wagner J. (as he then was) in Gauthier : [34] In conclusion, there is no cardinal rule against putting to a jury an alternative defence that is at first glance incompatible with the primary defence.

The issue is not whether such a defence is compatible or incompatible with the primary defence, but whether it meets the air of reality test.

In any case, the trial judge must determine whether the alternative defence has a sufficient factual foundation, that is, whether a properly instructed jury acting reasonably could accept the defence if it believed the evidence to be true. [17] [ 20 ] Second, in this case, once the trial judge rejected the defence based upon the malfunctioning of the speedometer, the inevitable conclusion was that the speedometer was functioning appropriately and could be relied upon by the respondent. [ 21 ] Therefore, the question to be determined was whether the respondent’s testimony of his speedometer reading at 112 km/h could

raise a reasonable doubt as to his rate of speed [18] but not about the commission of the offence of speeding. As stated by the Ontario Court of Appeal in York (Regional Municipality) v. Winlow [19] , and the Court agrees, the actual rate of speed is not an essential element of the offence of speeding, it is only relevant to sentencing. [ 22 ] A reasonable doubt as to the rate of speed does not entitle the accused to a full acquittal unless the rate of speed is below the speed limit. Further, the rate of speed is not an included offence. The offence is speeding.

The rate of speeding determines the applicable fine and demerit points. Therefore, when the accused admits that he was speeding but at a lower rate than the one with which he is charged, the hearing is not a trial about his culpability to the offence of speeding but a sentencing hearing to determine the rate of speed.

Should there be a new trial? [ 23 ] The Superior Court concluded that as the trial judge had not properly weighed the credibility of the respondent, a new trial must be ordered. [ 24 ] On the other hand, the respondent takes the position that he admitted in his testimony that he was driving at 112 km/h and that his credibility was unchallenged. [ 25 ] In such regard and depending on the ultimate findings of fact there is a substantial difference on the fine and demerit points to which the respondent may be sentenced. Pursuant to the second paragraph of

section 313 of the Code of Penal Procedure [20] , the Court may return a case for sentencing purposes to the court of first instance. We agree with the Superior Court that a new hearing before a different judge should be ordered but limited to sentencing. [ 26 ] This case raised an issue of general importance for the administration of justice. For this reason, there will be no order for costs. V FOR THESE REASONS THE COURT: [ 27 ] GRANTS the appeal; [ 28 ] CONFIRMS the finding of guilt by the Court of Québec for the offence of speeding under

section 329 of the Highway Safety Code ; [ 29 ] ORDERS a sentencing hearing before a different judge; [ 30 ] DECLARES that

section 329 of the Highway Safety Code provides an offence of strict liability; [ 31 ] WITHOUT costs. GENEVIÈVE MARCOTTE, J.A. MARK SCHRAGER, J.A. PATRICK HEALY, J.A. JOCELYN F. RANCOURT, J.A. GUY COURNOYER, J.A. Mtre Julien Beaulieu DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For the Appellant Mtre Jean-Sébastien Tremblay-Mimeault CAIN LAMARRE For the Respondent Date of hearing: January 20, 2023