2017 QCCA 566, 2017 QCCA 566

Buckley c. R. 2017 QCCA 566 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006252-165 (500-36-007727-152) MINUTES OF THE HEARING DATE: April 5, 2017 THE HONOURABLE MARIE ST-PIERRE, J.A. PETITIONER COUNSEL LIAM MICHAEL BUCKLEY Mtre JULIUS GREY, AD. E. Mtre GENEVIÈVE GREY (Grey & Casgrain s.e.n.c.) RESPONDENT COUNSEL HER MAJESTY THE QUEEN Mtre JOSÉ COSTA (Cour municipale de Montréal) DESCRIPTION: Application for leave to appeal from a judgment rendered on August 29, 2016 by the Honourable Alexandre Boucher of the Superior Court, District of Montreal. (

Article 839 Cr.C .) Clerk: Mihary Andrianaivo Courtroom: RC.18

HEARING 9:00 Continuation of the hearing of March 30, 2017. The appearance of the Parties is notrequired this morning. BY THE JUDGE : Judgment – See page 3. End of the hearing. Mihary AndrianaivoClerk BY THE JUDGE JUDGMENT [1] The petitioner asks for leave to appeal, under s. 839 Cr.c., from a judgment of the Superior Court, District of Montreal (theHonourable Mr. Justice Alexandre Boucher), rendered on August 29, 2016 dismissing his appeal from a decision rendered by theHonourable Manon Bourbonnais convicting him on two counts of obstructing police officers in the execution of their duties (2016 QCCS4432). [2]

Section 839 C.cr. reads as follows : 839

(1) Sous réserve du paragraphe (1.1), unappel à la cour d’appel, au sens de l’article 673,peut, avec l’autorisation de celle-ci ou d’un deses juges, être interjeté, pour tout motif quicomporte une question de droit seulement :

a) de toute décision d’un tribunal relativement àun appel prévu par l’article 822;

b) d’une décision d’une cour d’appel rendue envertu de l’article 834, sauf lorsque ce tribunal estla cour d’appel. [Soulignement ajouté] 839

(1) Subject to subsection (1.1), an appeal tothe court of appeal as defined in

section 673 may,with leave of that court or a judge thereof, betaken on any ground that involves a question oflaw alone, against (

a) a decision of a court in respect of an appealunder

section 822; or (

b) a decision of an appeal court under section834, except where that court is the court ofappeal. [Underlining added] [3] In order to obtain leave pursuant to s. 839 Cr.c., the petitioner must show a question of law alone of importance beyond theparticular case or, if not, one in respect of which the merits of the proposed appeal would be strong and that the matter be of seriousconsequence for the petitioner. Extracts from Bouchard c. R (2011 QCCA 30) [5] Les critères qui encadrent une demande en vertu de l'article 839 du Code criminel ont été résumés par le juge Dalphond dans R.c.

Lebel: Comme le rappelait notre Cour dans l'arrêt R. c. Huneault (1984), (QC CA), 17 C.C.C. (3d) 270, pour obtenir lapermission d'en appeler en vertu de l'art. 839 C.cr., l'appelant doit non seulement soulever une question de droit mais aussi démontrerqu'elle est : (1) suffisamment importante, ou (2) qu'elle comprend des circonstances particulières qui justifient que la Cour d'appelautorise l'appel, ou (3) qu'elle comprend un motif suffisant qui nécessite l'intervention de la Cour d'appel.

La question de savoir quelledéduction peut être tirée des faits n'est pas une question de droit seulement, mais plutôt une question mixte de droit et de fait. [6] Dans l'arrêt R. c. R.(R.), le juge Doherty de la Cour d'appel de l'Ontario procède à une étude exhaustive de la jurisprudencecanadienne. Il résume le critère encadrant une demande en vertu de l'article 839 C.cr. en ces termes: In

summary, leave to appeal pursuant to s. 839 should be granted sparingly. There is no single litmus test that can identify all cases inwhich leave should be granted. There are, however, two key variables — the significance of the legal issues raised to the generaladministration of criminal justice, and the merits of the proposed grounds of appeal. On the one hand, if the issues have significance to

the administration of justice beyond the particular case, then leave to appeal may be granted even if the merits are not particularly strong, though the grounds must at least be arguable. On the other hand, where the merits appear very strong, leave to appeal may be granted even if the issues have no general importance, especially if the convictions in issue are serious and the applicant is facing a significant deprivation of his or her liberty. [Je souligne] [7] L'approche énoncée par le juge Doherty complète harmonieusement le critère établi par cette Cour dans l'arrêt Huneault . [8] On peut constater qu'une permission d'appeler en vertu de l'

article 839 C.cr . est accordée avec parcimonie. [9] On peut résumer les critères à considérer ainsi : l'importance de la question en cause pour l'administration de la justice; les circonstances particulières du dossier, notamment la gravité de la condamnation et de la peine restreignant la liberté du délinquant; l'existence d'un motif suffisant, cela comprend le sérieux des motifs d'appel, justifiant l'intervention de la Cour d'appel. [10] Il va de soi que chaque affaire donne lieu à une pondération individualisée des critères. [Emphasis added, references omitted] Extract from R. v. R.R. , 2008 ONCA 497 [37] In

summary, leave to appeal pursuant to s. 839 should be granted sparingly. There is no single litmus test that can identify all cases in which leave should be granted. There are, however, two key variables - the significance of the legal issues raised to the general administration of criminal justice, and the merits of the proposed grounds of appeal. On the one hand, if the issues have significance to the administration of justice beyond the particular case, then leave to appeal may be granted even if the merits are not particularly strong, though the grounds must at least be arguable.

On the other hand, where the merits appear very strong, leave to appeal may be granted even if the issues have no general importance, especially if the convictions in issue are serious and the applicant is facing a significant deprivation of his or her liberty. See also : Dupont v. R. , 2016 QCCA 1371 ; Oliveira Rolo v . R. , 2016 QCCA 850 ; Laplante v. R. , 2016 QCCA 95 ; Naud Fournier v. R ., 2015 QCCA 1797 ; Meddah v. R. , 2015 QCCA 1467 ; R . v. Lemieux , 2015 QCCA 1451 ; Champagne v. R ., 2014 QCCA 1038 ; R . v. Tanel , 2013 QCCA 1163 ; R.M . v . R ., 2013 QCCA 331 ; Purgal v .

Montreal (City of) , 2012 QCCA 1908 . [ 4 ] As my colleague Mr. justice Nicholas Kasirer wrote in Uber Canada inc. v.

Agence du revenu du Québec , 2016 QCCA 1303 , paragraph 4 [1] : «[l]eave will not be granted in circumstances when, however important a question might appear in the abstract, the petitioner fails to advance grounds that have a reasonable prospect of success on appeal.» [ 5 ] I am of the view that the motion does not meet the exacting standard set forth in s. 839 Cr.c. in particular because the arguments in support of the proposed appeal do not raise a question of law alone. [ 6 ] This appears clearly from the content of the motion to seek leave to appeal, where the petitioner namely submits the following: 25.

Appellant submits that the officers cannot be said to have been obstructed in the execution of their duties when Appellant's continued presence and interaction with the officers was the result of their own illegal refusal to comply with his legal request for identification; […] 36.

Here, Appellant's conviction was based on his behaviour after being arbitrarily denied the opportunity to verify the officers' identity; 37. ln a sense, the Honourable Justice Bourbonnais and the Honourable Justice Boucher concluded that he should be convicted for abusing of his rights by insisting on being provided with the denied information; 38. lt is Appellant's contention that the police officers who claimed to have been obstructed by Appellant came before the trial court with dirty hands and created the situation which they were complaining about; […] 42.

The very nature of a police officer's duties entails that he will sometimes be called upon to accomplish concurrent or competing duties; 43. This is what happened on the night of April 25 th 2012 and it should not have led to obstruction charges against Appellant, let alone a conviction; 44. The officers were the only ones to blame if, following their refusal to comply with their Code of ethics duties, they received further requests and were further distracted from their competing duties; 45.

Certainly, it cannot be said that they were obstructed in the execution of some of their duties where this so-called obstruction was directly caused by their own refusal to comply with competing duties they had toward Appellant; as it was argued in front of the first instance judge, if anyone is to be found responsible for the alleged hindrance, it should be the officers themselves; […]

From paragraphs 144 to 176 of his Written Submissions R-3, Appellant argued that the credibility of the complainant policeofficers had been damaged to such an extent and on elements of such central importance that it became impossible to reasonablyconclude to his guilt beyond a reasonable doubt; […] 59. lt was argued that, given the obvious contradictions revealed by the video R-4, it would be unreasonable to give weight to theofficers' testimony in relation to the un-filmed periods and thus impossible to conclude that Appellant invaded the officers' bubble or thathe addressed them in any manner other than that of the few requests he admitted to; 60.

Also, the extreme unreliability of their testimony casts doubt on whether their reported subjective feelings of having beenobstructed were worthy of belief; […] 62. ln the circumstances, the Honorable Justice Boucher's failure to address the question of credibility is incomprehensible as it goesto the root of the finding that an obstruction occurred; […] 64. Moreover, it appears that the Honorable Justice Boucher seriously misapprehended many of the trial judge's findings of tact; […] 70.

Thus, not only was Appellant's argument on credibility ignored, but the few indications that are received from the reasons of theHonourable Justice Boucher indicate that his reasons on the arguments he did address were based on a version of the facts that was not inconformity with the first instance judge's findings of fact; 71. ln other words, he applied the law to the wrong facts, leading to erroneous results while not addressing the arguments based onthe credibility assessment; […] 73.

The public's confidence in the administration of justice requires that such serious deficiencies in the judgment of a Superior Courtjudge be remedied; [7] Moreover, I am of the view that the motion does not meet the exacting standard set forth in s. 839 Cr.c., in particular because ithas no reasonable chances of success given the facts of the case described as follows by Mr. justice Boucher in his judgment : [5] All along, the appellant yelled after the officers and kept following them closely, reproaching them to act without lawfulauthority and asking them for their names and badge numbers.

An officer said that the appellant was getting “in her bubble”. Theofficers did not provide their names and badge numbers. However, badge numbers were visible on officers’ helmets. Also, the police carwas marked with an identification number. The appellant was ordered several times to leave and warned that he would be arrested, but herefused to obey. Finally, the appellant was arrested. […] [8] This Court finds that the trial judge correctly directed herself in law; that her findings of fact were reasonable and perfectlyconsistent with the evidence (R. v. Beaudry, 2007 SCC 5 , [2007] 1 SCR 190; R. v.

Sinclair, 2011 SCC 40 , [2011] 3RCS 3; R. v. Lohrer, 2004 SCC 80 , [2004] 3 SCR 732); and that she properly applied the burden of proof which restsexclusively on the prosecution to establish the guilt of the accused beyond any reasonable doubt (R. v. J.R., 2014 QCCA 869). […] [13] The trial judge rightly found that the appellant committed the offence. His conduct disturbed the police officers, made them losetheir concentration and made their work more difficult. The judge was also correct to find that the appellant acted willfully with theprohibited purpose in mind.

The appellant was warned several times, he knew that the officers were busy, but he chose not to leave andpersisted on screaming at them and on following them. The appellant was not convicted merely because he asked the officers for theiridentifications; he was convicted because he willfully obstructed them. [14] Moreover, the police officers were in the execution of their duties. They were justified to establish a security perimeter and tokeep intruders out with the aim of restoring order and assisting in the arrest of protesters who had engaged in unlawful acts (Knowlton,supra).

THEREFORE, THE UNDERSIGNED: [8] DISMISSES the motion for leave to appeal.

marie st-pierre , J.A.