2012 QCCA 2212, 2012 QCCA 2212

Unofficial English Translation Trudel Thibault c. R. 2012 QCCA 2212 COURT OF APPEAL CANADA PROVINCE OF QUEBEC QUEBEC REGISTRY No.: 200-10-002859-127 (200-36-001884-121) (200-01-139761-096) MINUTES OF HEARING DATE: December 12, 2012 CORAM: THE HONOURABLE FRANCE THIBAULT, J.A. (JT1086) JULIE DUTIL, J.A. (JD1952) JACQUES R. FOURNIER, J.A. (JF0770) APPELLANT COUNSEL LISE TRUDEL THIBAULT Mtre MARC LABELLE (AX3112) Mtre KIM HOGAN (AH6197) (Labelle, Boudrault) RESPONDENT COUNSEL HER MAJESTY THE QUEEN Mtre PIERRE LAPOINTE (AL8388) Mtre CATHERINE DUMAIS (AU6803) (Criminal and penal prosecutor) IMPLEADED PARTIES COUNSEL CRIMINAL AND PENAL PROSECUTOR RICHARD GRENIER MICHEL L. AUGER

On the appeal from a judgment rendered on August 27, 2012, by the Honourable Mr. Justice Richard Grenier of the Superior Court, District of Quebec. NATURE OF APPEAL : 1. Certiorari 2. Appellant's amended motion for an order of stay of proceedings Clerk: Michèle Blanchette (TB3352) Courtroom: 4.33 HEARING 9:31 a.m. Remarks of the Court; Submissions of Mtre Labelle; 10:12 a.m. Submissions of Mtre Lapointe; Remarks of the Court; 10:25 a.m. Response of Mtre Labelle; 10:28 a.m. Recess; 10:42 a.m. Remarks of the Court; Submissions of Mtre Labelle; Judgment. (

s) Clerk PER CURIAM: JUDGMENT FOR THE REASONS ENTERED IN THE RECORD, THE COURT: [ 1 ] DISMISSES the appeal; [ 2 ] DECLARES moot the amended motion for an order staying proceedings.

FRANCE THIBAULT, J.A. JULIE DUTIL, J.A. JACQUES R. FOURNIER, J.A. Trudel Thibault c. R. 2012 QCCA 2212 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-10-002859-127 (200-36-001884-121) (200-01-139761-096) DATE OF JUDGMENT: DATE OF REASONS: December 12, 2012 December 14, 2012 CORAM: THE HONOURABLE FRANCE THIBAULT, J.A. JULIE DUTIL, J.A. JACQUES R. FOURNIER, J.A. LISE TRUDEL THIBAULT APPELLANT – Petitioner – Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix and THE HONOURABLE MR.

JUSTICE RICHARD GRENIER of the Superior Court, Criminal Division, District of Quebec IMPLEADED PARTY and THE HONOURABLE JUDGE MICHEL L. AUGER of the Court of Quebec, Criminal Division, District of Quebec IMPLEADED PARTY – Respondent and CRIMINAL AND PENAL PROSECUTOR IMPLEADED PARTY – Impleaded party REASONS FOR A JUDGMENT DELIVERED FROM THE BENCH [1] The appellant appeals from a judgment of the Superior Court, District of Quebec (the Honourable Mr.

Justice Richard Grenier), rendered on August 27, 2012, that referred her motion for a writ of certiorari to the trial judge. [2] From 1997 to 2007, the appellant was the Lieutenant Governor of Quebec. On October 27, 2009, she appeared before the Court of Quebec, Criminal and Penal Division, in connection with the following charges: [ translation ]

Count 1: Between January 30, 1997, and June 7, 2007, at Quebec City, District of Quebec, did, as a public officer, commit a breach oftrust in connection with the duties of her office in relation to the Government of Canada, thereby committing an indictable offence undersection 122 of the Criminal Code. Count 2: Between January 30, 1997, and June 7, 2007, at Quebec City, District of Quebec, did, as a public officer, commit a breach oftrust in connection with the duties of her office in relation to the Government of Quebec, thereby committing an indictable office undersection 122 of the Criminal Code.

Count 3: Between January 30, 1997, and June 7, 2007, at Quebec City, District of Quebec, did (on several occasions) forge a document,to wit: a travel and entertainment expenses certificate and/or a travel expenses and hospitality charges certificate, knowing it to beforged, with the intention that it be used, dealt with, or acted on as if it were genuine to the prejudice of the Government of Canada,thereby committing an indictable offence under paragraph 367(

a) of the Criminal Code. Count 4: Between January 30, 1997, and June 7, 2007, at Quebec City, District of Quebec, knowing that a document was forged, to wit:a travel and entertainment expenses certificate and/or a travel expenses and hospitality charges certificate, did use, deal with or act uponsaid document as if it were genuine, thereby committing an indictable offence under paragraphs 368(1)(a)(

c) of the Criminal Code. Count 5: Between January 30, 1997, and June 7, 2007, at Quebec City, District of Quebec, by deceit, falsehood or other fraudulentmeans, did defraud the Government of Canada of more than $5000.00 in legal currency, thereby committing an indictable offence underparagraph 380(1)(

a) of the Criminal Code. Count 6: Between January 30, 1997, and June 7, 2007, at Quebec City, District of Quebec, did, by deceit, falsehood or other fraudulentmeans, defraud the Government of Quebec of more than $5000.00 in legal currency, thereby committing an indictable offence underparagraph 380(1)(

a) of the Criminal Code. [3] The preliminary inquiry took place on 22 non-consecutive days between January of 2011 and April 30, 2012, before Michel L.Auger, J.C.Q., of the Court of Quebec, Criminal and Penal Division. On May 1, 2012, Auger, J.C.Q. committed the appellant for trial onthe six counts and specified the alleged incidents. [4] On May 30, 2012, the appellant filed a motion for a writ of certiorari. She alleged that Auger, J.C.Q. had exceeded hisjurisdiction by committing her for trial. She claims that, as Lieutenant-Governor, she is the representative of the Queen of England inQuebec.

In light of the principle whereby "The Queen can do no wrong," she contends that she is not subject to the criminal justicesystem. [5] On August 27, 2012, Grenier, J. found that the appellant does not enjoy absolute immunity. Moreover, he was of the view thatthe existence of relative immunity must be decided in the context of an analysis of the constitutional statutes, including the Charter, inlight of the evidence. He referred the motion to the judge who would be assigned to preside at the trial. [6] The appellant raises several grounds of appeal.

As the respondent proposes, however, the Court is of the opinion that it shouldfirst decide the following question: [translation] Did the Honourable Mr. Justice Richard Grenier err in referring the motion for a writ of certiorari to the trial judge because the issuesraised by the appellant do not fall within the jurisdiction of a judge hearing such a motion but within that of the judge who will beassigned to preside at the trial? [7] The motion for a writ of certiorari is an extraordinary remedy by which a referral to trial may be overturned for excess or lackof jurisdiction.

Accordingly, only total immunity could impinge on the jurisdiction of Auger, J.C.Q., who was presiding at thepreliminary inquiry. [8] It should be noted that this issue was never raised before Auger, J.C.Q. during the preliminary inquiry. [9] The maxim that "The King (or Queen) can do no wrong" originated in an era where the monarch benefited from total immunitybecause he or she was ascribed the quality of perfection.[1] [10] Canada is a constitutional monarchy.

As noted by Professors Brun, Tremblay and Brouillet, the hereditary head of state or herpersonal representatives have been divested of any real power under the constitutional rules.[2] In Canada, royal prerogative powers arein reality exercised by the federal or provincial government.

The Sovereign or her representatives must act in accordance with the viewsof their ministers.[3] Regarding the Governor General and the Lieutenant Governors, these authors state that they do not enjoy the sameimmunities as the Queen: [translation] The Governor General and the Lieutenant Governors are not viceroys and do not benefit from the same immunities as the Queen. Theymay be sued for their civil and criminal wrongs, but not for acts committed in the performance of their duties. See Musgrave v. Pulido,(1879) 5 A.C. 102 and Bonanza Creek Gold Mining Co. v.

R., (UK JCPC), [1916] 1 A.C. 566 at 585–587 ….[4] [11] The Court shares this point of view: the appellant does not enjoy absolute immunity. In view of this conclusion, it isunnecessary to rule on the other grounds of appeal. [12] The trial judge did not err in deciding to refer the motion for a writ of certiorari to the trial judge. The trial judge will determinewhether the appellant enjoys relative immunity and what the scope of such immunity may be, in light of the evidence.

[ 13 ] FOR THESE REASONS THE COURT DISMISSED THE APPEAL AT THE HEARING . FRANCE THIBAULT, J.A. JULIE DUTIL, J.A. JACQUES R. FOURNIER, J.A. Mtre Marc Labelle Mtre Kim Hogan Labelle, Boudrault For the Appellant Mtre Pierre Lapointe Mtre Catherine Dumais Criminal and penal prosecutors For the respondent Date of hearing: December 12, 2012