2018 QCCA 633, 2018 QCCA 633

Ville de Kirkland c. Cheftechi-Furci 2018 QCCA 633 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006671-182 (500-36-008461-173) MINUTES OF THE HEARING DATE: April 19, 2018 THE HONOURABLE MARK SCHRAGER, J.A. PETITIONER COUNSEL VILLE DE KIRKLAND Mtre GABRIEL LAPIERRE Mtre AGORI FRIDAS (Contentieux de la Cour municipale de Montréal) RESPONDENT COUNSEL JONATHAN CHEFTECHI-FURCI Mtre CHERINE CHEFTECHI Mtre GEORGE CALARITIS (Me George Calaritis, avocat) DESCRIPTION: Application for leave to appeal from a judgment rendered on February 22, 2018 by the Honourable Justice Pierre-C.

Gagnon of the Superior Court, District of Montreal. (Sec. 291 C.P.P. ) Clerk: Mihary Andrianaivo Courtroom: RC.18

HEARING 9:30 Continuation of the hearing hold on April 18, 2018. The Parties’ attendance is not required, this morning. BY THE JUDGE: Judgment – See page 3. End of the hearing. Mihary Andrianaivo Clerk BY THE JUDGE JUDGMENT [ 1 ] Applicant seeks leave to appeal the judgment of February 21, 2018, of the Superior Court, District of Montreal (the Honourable Pierre-C. Gagnon), [1] sitting as an appellate court under s. 266 (4) Code of Penal Procedure ( C.P.P. ). The judgment granted Respondent’s appeal and quashed a judgment of the municipal court of Montreal of February 28, 2017 (the Honourable Marc Renaud).

The judgment of the municipal court dismissed Respondent’s motion in revocation of a previous judgment rendered by default, finding him guilty of a speeding offence under the Highway Safety Code . [2] [ 2 ] After numerous postponements, Respondent’s request through his attorney to postpone the trial of his speeding ticket was dismissed and he was convicted by default. His motion in revocation of the judgment pursuant to s. 250 C.P.P. was dismissed because it was the wrong recourse.

Justice Renaud ruled that the proper recourse was an appeal to the Superior Court (s. 270 C.P.P. ) as one judge of the municipal court could not sit, in effect, in appeal of a colleague’s judgment to refuse a postponement. [ 3 ] On appeal before the Superior Court, Gagnon, J.S.C., decided that: (

i) the case law referred to by Justice Renaud did not apply ( Sorella v. Directeur des poursuites criminelles et pénales [3] ); (ii) that no precedent was shown to him precluding the motion in revocation as a recourse; (iii) that s. 253 C.P.P. was applicable and (iv) that revocation and appeal were not mutually exclusive recourses and in certain situations, either could apply. Thus, he granted the appeal, quashed the judgment and sent the file back to the municipal Court for adjudication on the merits of the motion in revocation. [ 4 ] Applicant invokes before me the judgment in Gaudreault v.

Longueuil (Ville de) , [4] as authority that the appeal is the proper recourse where a postponement is refused and the Court proceeds by default. This jurisprudence appears not to have been submitted to Gagnon, J.S.C. [ 5 ] Gagnon, J.S.C., did not state that an appeal was inappropriate but only that either recourse could apply and that the merits of the application in revocation should be dealt with by the municipal court. I do not see a contradiction with the judgment in the matter of Gaudreault v.

Longueuil (Ville de) . [ 6 ] Appeals from the Superior Court are only permitted on a question of law within the discretion of a judge of this Court. [ 7 ] Contrary to Applicant’s assertion of the broad impact of Justice Gagnon’s decision on all cases where postponements are refused, the case only applies were a postponement is refused, the accused is absent and the Court proceeds by default.

I note that the Applicant’s reasoning implies had Respondent or his attorney simply not shown up at all at the hearing, revocation would have been an appropriate recourse. [ 8 ] Gagnon, J.S.C., merely decided that in the circumstances, revocation was an appropriate procedural vehicle. [ 9 ] Though the application before me may raise a point of law, the matter is not of sufficient interest in the circumstances for leave to appeal to be granted.

FOR THESE REASONS, THE UNDERSIGNED: [ 10 ] DISMISSES the motion, without legal costs, given the potential public interest in the question raised. mark schrager , J.A.