2010 QCCA 2277, 2010 QCCA 2277

Geleshko c. Montréal (Ville de) 2010 QCCA 2277 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-004744-106 ( 500-36-005189-090 ) MINUTES OF THE HEARING DATE: December 10, 2010 THE HONOURABLE YVES-MARIE MORISSETTE, J.A. PETITIONER ATTORNEY STELLA GELESHKO Mtre Jean-François P. Raymond BROSSEAU MORRISSEAU PARÉ RAYMOND RESPONDENT ATTORNEY VILLE DE MONTRÉAL Mtre Francis Paradis Municipal Court of Montreal

MOTION FOR LEAVE TO APPEAL FROM A JUDGMENT OF THE SUPERIOR COURT RENDERED ON JULY 6, 2010 BY THE HON. FRASER MARTIN J.S.C. Clerk: Annick Nguyen Court Room: RC.18 HEARING 9:32 Commencement of the hearing. 9:33 Submission by Mtre Raymond. 9:38 Submission by Mtre Paradis. 9:45 Rebuttal by Mtre Raymond. 9:47 Suspension. 11:18 Resumption of the hearing. BY THE JUDGE. Judgment – See page 3. Annick Nguyen Clerk JUDGMENT [ 1 ] The petitioner seeks leave to appeal against a judgment of the Superior Court (Mr.

Justice Fraser Martin) which confirmed on appeal a judgment of the Municipal Court of Montreal (Judge Dominique Joly). The latter judgment convicted the petitioner of a range of regulatory offences pertaining, in essence, to derelict property causing a hazard for the safety of the public. [ 2 ] In her motion, the petitioner raises a ground of appeal which is twofold: (

i) the judge of the Municipal Court would have erred in law in allowing the petitioner's brother, who is not a lawyer, to represent her at trial, and (ii) the petitioner's brother, while purporting to represent her at trial, would have done so incompetently and thus deprived her of a full and complete defence. [ 3 ] On the first point, while it is true that

section 192 of the Code of Penal Procedure [1] provides that a defendant acts either in person or through an attorney, it is well apparent from the reasons for decision set out in Mr. Justice Martin's judgment that the petitioner was intent on being assisted by her brother and by no one else - several postponements were granted in the Municipal Court to accommodate her in her desire to proceed in this manner and she did not follow Judge Joly's advice to retain the services of an attorney.

The situation thus created might have justified that the Bar of Quebec take action against the petitioner's brother, but it is difficult to see, in light of the Supreme Court of Canada's judgment in Fortin v. Chrétien [2] , how that fact, taken by itself, could affect the validity of the process before Judge Joly.

[ 4 ] On the second point, one ought first to bear in mind that litigants must, perforce, bear the consequences of the choices they make. As the Court of Appeal of Ontario wrote in a unanimous opinion in the case of R. v. Romanowicz [3] : By choosing to proceed without counsel, an accused elects to forego the right to effective assistance of counsel. An accused cannot at the same time exercise the right to proceed without the assistance of counsel and yet demand the right to the effective assistance of counsel. [ 5 ] In this instance, apart from Mr.

Justice Martin's finding that that no miscarriage of justice had taken place in fact, it is patent from the same judgment, and in particular from paragraphs [18] to [24] of Mr. Justice Martin’s reasons, that the petitioner had no defence to offer to a strict liability offence and that, indeed, she offered none.

As I have written elsewhere in a judgment on a leave application, mere obduracy, however extreme, is never a substitute for a good cause of action or a sound ground of appeal; nor is it a substitute for a valid defence. [ 6 ] I therefore conclude that the motion for leave to appeal evinces no ground in law which would merit the consideration of a panel of this Court, and accordingly the motion is dismissed, with costs if any are applicable. YVES-MARIE MORISSETTE, J.A.