r v., 2013 QCCQ 5173

Unofficial English Translation Directeur des poursuites pénales du Canada c. Parent 2013 QCCQ 5173 JC1862 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF BONAVENTURE "Criminal and Penal Division" No.: 105-73-000015-101 DATE: May 3, 2013 PRESIDING: THE HONOURABLE RICHARD CÔTÉ, J.C.Q. DIRECTOR OF PUBLIC PROSECUTIONS OF CANADA Prosecutor-petitioner v. ÉRIC PARENT Defendant-respondent and ATTORNEY GENERAL OF QUEBEC Mis en cause JUDGMENT on a motion to dismiss a notice of intention (

article 95 C.C.P. ) [ 1 ] The defendant Éric Parent stands trial on charges of having, on July 15, 2010, caught and retained more groundfish than the permitted daily quota in violation of paragraph 91(3)(

a) of the Atlantic Fishery Regulations, 1985 [ 2 ] In October of 2011, before his trial began, the defendant served a notice under

article 95 of the Code of Civil Procedure on the Attorney General of Canada, the Attorney General of Quebec, and the Director of Public Prosecutions indicating his intention to ask the court to declare that the provisions of the Fisheries Act and the Atlantic Fishery Regulations , under which he is charged, do not apply to him. He invokes his status as a Métis and alleges that the provisions at issue infringe his aboriginal right to fish for food, which is protected under

section 35 of the Constitution Act, 1982 . [ 3 ] The Court is seized of a motion filed by the Director of Public Prosecutions of Canada seeking to dismiss the defendant's notice of intention based on its insufficiency. Positions of the Parties [ 4 ] The following paragraphs from the motion to dismiss effectively summarize the Director's position: [ translation ] 35. The defendant’s notice completely lacks facts detailing a historic Métis community or a contemporary one in the territory at issue – the region of New Carlisle – that could hold an alleged aboriginal right to fish plaice for food. 36.

Even if such a community exists, the notice does not include any facts stating how the alleged aboriginal right is an integral part of the culture of the said community making it distinctive from Europeans and Aboriginals. 37. There are no facts demonstrating how subsection 91(3) of the Atlantic Fishery Regulations, 1985 as amended by The order modifying the closure period and quota Gulf Region, 2010-062 infringes the exercise of the alleged aboriginal right. 38. The defendant's notice is therefore insufficient and does not allow the Petitioner to respond to the constitutional issue raised.

[5] Counsel for the defendant argues that the notice of intent that he filed is ten pages long and states his pretensions and the groundsrelied upon with sufficient precision. RELEVANT STATUTORY PROVISIONS [6]

Section 35 of the Constitution Act, 1982 provides: 35.

(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

(2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Métis peoples of Canada.

(3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be soacquired.

(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally tomale and female persons. (96) [7]

Article 95 of the Code of Civil Procedure (RSQ c. C-25) provides: 95. Unless the Attorney General has previously received a notice in accordance with this section, no provision of a statute of Québec orCanada, of a regulation made thereunder, of an order, of an order in council or of a proclamation of the Lieutenant-Governor, theGovernor General, the Gouvernement du Québec or the Governor General in Council may be declared inapplicable constitutionally,invalid or inoperative or of no force or effect, including in respect of the Canadian Charter of Rights and Freedoms (Part I of

Schedule Bto the Canada Act,

chapter 11 in the 1982 volume of the Acts of the Parliament of the United Kingdom) or the Charter of human rightsand freedoms (chapter C-12), by a court in Québec. Such notice is also required when a person sues the State or the Public Administration for compensation for a violation or negation ofthe person's fundamental rights and freedoms under the Charter of human rights and freedoms or the Canadian charter of rights andfreedoms. The notice shall set forth, in a precise manner, the nature of the pretensions and the grounds relied upon.

It is to be accompanied with acopy of the proceedings and served by the person who intends to raise the question not later than 30 days before the date of the hearing.Only the Attorney General may waive such notice. No application may be determined by the court unless the notice has been validly given, and the court shall adjudicate only upon thegrounds set forth in the notice. The notices referred to in this

article are also served on the Attorney General of Canada when the provision concerned comes underfederal jurisdiction. They are also served on the Director of Criminal and Penal Prosecutions when the provision relates to a criminal orpenal matter. 1965 (1st sess.), c. 80, a. 95; 1985, c. 29, s. 6; 2005, c. 34, s. 43. ANALYSIS [8] The notice of intention set out in

article 95 C.C.P. is not a mere formality. In an

article published in 1990 in the Revue du Barreau,Mtre Danielle Pinard addressed the raison d'être of the notice set out under

article 95. She wrote:[1] [translation] The presumption of constitutional validity and procedural fairness are the theoretical justifications for the requirement imposed by theCode of Civil Procedure to inform the Attorney General of any constitutional challenges to a statute. It is a form of recognition of therespect that must be shown by judges and the general population for legislative choices made in a democratic context.

Constitutionalinvalidity is a serious conclusion that may be reached only if the public authority has had the chance to defend the merit of the impugnedstatute before the court. [9] In Eaton v. Brant County Board of Education, (SCC), [1997] 1 S.C.R. 241, the Supreme Court had the followingto say about the scope of

section 109 of the Ontario Courts of Justice Act, a provision similar to

article 95 of the Code of Civil Procedure: The purpose of s. 109 is obvious. In our constitutional democracy, it is the elected representatives of the people who enact legislation.While the courts have been given the power to declare invalid laws that contravene the Charter and are not saved under s. 1, this is apower not to be exercised except after the fullest opportunity has been accorded to the government to support its validity.

To strike downby default a law passed by and pursuant to the act of Parliament or the legislature would work a serious injustice not only to the electedrepresentatives who enacted it but to the people. Moreover, in this Court, which has the ultimate responsibility of determining whether animpugned law is constitutionally infirm, it is important that in making that decision, we have the benefit of a record that is the result ofthorough examination of the constitutional issues in the courts or tribunal from which the appeals arise. [10] In Thibault v. Collège des médecins, (QC CA), [1998] J.Q.

No. 459, the Court of Appeal wrote: [translation]

[18] ... One of the general principles of our legal system states that the constitutional validity of statutes and regulations is presumed.Therefore, a litigator who questions this presumption must first, allow those defending the constitutional validity of the legislation tosubmit their arguments and defend the state of law and second, give them enough time to avoid taking them by surprise. A challenge tothe constitutional validity of a statute is a serious affair as it affects not only the interests of the parties to the dispute but also likely theinterests of others. [11] In Bekker v.

Canada, [2004] F.C.A. 186, in relation to a similar provision under the Federal Courts Act, the Federal Court ofAppeal wrote: ... This is why the Notice has to provide its recipients with adequate and sufficient information in terms of the material facts giving riseto the constitutional question and the legal basis for that question, otherwise it will be found insufficient and the Court will assume thatthere is no serious question to be addressed: see Gitxsan Treaty Society v. Hospital Employees Union et al., previously cited.

Finally, itensures that no injustice is created to the elected representatives who enacted the law and to the people that they represent: see Eaton v.Brant County Board of Education, (SCC), [1997] 1 S.C.R. 241, at pages 264-65 per Sopinka J. [12] The absence of a notice of intention under

article 95 C.C.P. therefore prevents the Court from ruling on the constitutionalvalidity of a statute or regulation. [13] In 9022-1672 Québec Inc. v. Québec (D.P.C.P.) 2009 QCCA 1696, however, the Court of Appeal preferred a more flexibleapproach to this provision where a notice has been served, but its sufficiency is at issue. Hilton, J.A. stated: 54 A more appropriate approach to such procedural sidetracking is to be found in the judgment in R. v.

Caplin, which was a caseinvolving a prosecution of aboriginal defendants who as part of their defence invoked aboriginal treaty rights without having, from theprosecution's perspective, provided sufficient details about the treaty rights being relied upon. The appropriate remedy was not toforeclose any constitutional arguments as the Attorney General had proposed, but rather to provide a timetable for the submission offurther details. [14] The ruling in R v.

Caplin, 1994 J.Q. 2217, cited by Hilton, J.A. is all the more relevant because the defendants in that caseinvoked aboriginal fishing rights as members of an aboriginal community and alleged that the legislative provisions under which theywere prosecuted did not apply to them. The Attorney General who had been served a notice under

article 95 C.C.P. was seeking thedismissal of this constitutional notice because of its insufficiency. Guberman, J. opted for a flexible approach. He wrote: 29 This is not to say, however, as Counsel for the Attorney General suggests that if the notice does not give enough details or does notadequately state the issues that the defence should subsequently be foreclosed from submitting additional information if sufficient time Isallowed to do so before the constitutional argument begins.

And in this respect, the prosecution should also be given enough time tostudy this information. 31 Counsel for the Attorney General seems to be insisting on a purely formal and procedural approach. The state of the law in 1994clearly goes against this formalist or even draconian tendency and this Court cannot accept it especially in view of the very importantissues we are dealing with here. [15] Guberman J. referred to the comments of Lamer, J. in R. v. Sparrow (SCC), [1990] 1 S.C.R. 1075, where heinsisted on the need for courts hearing disputes relating to aboriginal rights protected under

section 35 to take an approach that considersthis provision's purpose, which is to confirm aboriginal rights. [16] The need for a generous

interpretation of

section 35 is endorsed by the Supreme Court in R. v. Van der Peet, (SCC), [1996] 2 S.C.R. 507: 23. Before turning to a purposive analysis of s. 35(1), however, it should be noted that such analysis must take place in light of thegeneral principles which apply to the legal relationship between the Crown and aboriginal peoples. In Sparrow, supra, this Court held atp. 1106 that s. 35(1) should be given a generous and liberal

interpretation in favour of aboriginal peoples: When the purposes of the affirmation of aboriginal rights are considered, it is clear that a generous, liberal

interpretation of the words inthe constitutional provision is demanded. [Emphasis added.] [17]

Section 35 of the Constitution Act, 1982 protects the aboriginal rights of the Métis along with those of Indians and Inuits. In R.v. Powley, 2003 SCC 43, the Supreme Court suggested an analytical framework adapted to the unique situation of the Métis peoples. Itrecalls in these words the need for a generous

interpretation of

section 35 with respect to Métis: 13 Our evaluation of the respondents’ claim takes place against this historical and cultural backdrop. The overarching interpretiveprinciple for our legal analysis is a purposive reading of s. 35. The inclusion of the Métis in s. 35 is based on a commitment torecognizing the Métis and enhancing their survival as distinctive communities. The purpose and the promise of s. 35 is to protectpractices that were historically important features of these distinctive communities and that persist in the present day as integral elementsof their Métis culture. [18] In Powley, the Court describes the Métis whose rights are protected under

section 35 as follows: 10. The term “Métis” in s. 35 does not encompass all individuals with mixed Indian and European heritage; rather, it refers to distinctivepeoples who, in addition to their mixed ancestry, developed their own customs, way of life, and recognizable group identity separatefrom their Indian or Inuit and European forebears. Métis communities evolved and flourished prior to the entrenchment of Europeancontrol, when the influence of European settlers and political institutions became pre-eminent. [19] The Court adds, in paras. 12 and 13:

12. We would not purport to enumerate the various Métis peoples that may exist. Because the Métis are explicitly included in s. 35 , it is only necessary for our purposes to verify that the claimants belong to an identifiable Métis community with a sufficient degree of continuity and stability to support a site-specific aboriginal right.

A Métis community can be defined as a group of Métis with a distinctive collective identity, living together in the same geographic area and sharing a common way of life. [ 20 ] In the same judgment, the Court devised a ten-step test to determine whether a right claimed by Métis is a constitutionally protected right: 1. Characterization of the right 2. Identification of the Historic Rights-Bearing Community 3. Identification of the Contemporary Rights-Bearing Community 4. Verification of the Claimant’s Membership in the Relevant Contemporary Community 5. Identification of the Relevant Time Frame 6.

Determination of Whether the Practice is Integral to the Claimants’ Distinctive Culture 7. Establishment of Continuity Between the Historic Practice and the Contemporary Right Asserted 8. Determination of Whether or Not the Right Was Extinguished 9. If There Is a Right, Determination of Whether There Is an Infringement 10. Determination of Whether the Infringement Is Justified [ 21 ] In light of the preceding, the Court finds that the requirements of

article 95 C.C.P. must be given a contextual

interpretation. The Court must decide the outcome of the motion to dismiss brought by the D.P.P. by considering the nature of the dispute raised by the defendant in his notice of intention. [ 22 ] Disputes on aboriginal rights and the application of

section 35 of the Constitution Act generally require complex evidence and the use of experts. Because of the costs associated with such evidence, it is not always available when the notice of intention under

article 95 is sent to the Attorney General. A too-strict application of

article 95 C.C.P. could deprive aboriginal litigants from accessing the courts to have their aboriginal rights enforced. [ 23 ] Consequently, the Court finds that to comply, the notice of intention need not necessarily give an exhaustive list of the historical facts on which the defendant relies to argue the existence of an aboriginal right. The notice must, however, state with sufficient detail the defendant's argument as to the constitutional invalidity of the statute and the grounds relied upon to so argue.

If, prima facie , the notice does not permit the questions at issue to be defined, it may be declared inadmissible. [ 24 ] In its motion, the D.P.P. of Canada argues that the defendant's notice of intention is so insufficient, vague, and ambiguous that it is impossible to respond. It took each of the ten steps of the Powley test and tried to demonstrate that the defendant's notice is deficient in respect of each of them. [ 25 ] The Court does not believe that the notice of intention must answer absolutely every one of the questions raised in the Powley test to be admissible.

This test does constitute a useful guide, however, to assess whether the notice is sufficient overall. It is therefore appropriate to analyze the notice using this test, except for the step concerning the justification of the rights violation, which must be proved by the prosecution. 1. Characterization of the right [ 26 ] The defendant alleges that, as a Métis, he has the aboriginal right to fish for food and for barter in the Gulf of St. Lawrence between Paspébiac and Caraquet and in the bodies of water in the Gaspésie and the Lower St.

Lawrence inhabited and frequented by his community. [ 27 ] This characterization appears sufficient at first glance. 2. Identification of the Historic Rights-Bearing Community [ 28 ] In Powley , the Supreme Court defined the concept of a historic Métis community as follows: 23. In addition to demographic evidence, proof of shared customs, traditions, and a collective identity is required to demonstrate the existence of a Métis community that can support a claim to site-specific aboriginal rights.

We recognize that different groups of Métis have often lacked political structures and have experienced shifts in their members’ self-identification. However, the existence of an identifiable Métis community must be demonstrated with some degree of continuity and stability in order to support a site-specific aboriginal rights claim. [ 29 ] The defendant's notice lacks clarity in this respect.

The Court accepts the following elements, however. [ 30 ] After elaborating on the meaning of the word Métis, the defendant appears to trace back the origins of the historic community to seventeen families made up of Normans and Métis who settled in the region of Listuguj in 1760. He states that the founding members of these seventeen families had been frequenting the Gaspésie, the northern coastline of New Brunswick and the southern coastline of Quebec for decades.

[ 31 ] The defendant adds that these Métis are, for the most part, descended from Amerindian women who were married to European colonists. They inhabited the same territory as the Amerindian peoples from whom they came: the Mi'kmak, Etchemin-Maleseet, Abenaki, Pentagouet, and Passamaquoddy. [ 32 ] Before 1763, this large Métis community spread over five areas: the Lower St. Lawrence, Gaspésie, Nova Scotia, Maine and the St. Lawrence River valley.

In their travels, the Métis from one region married those from the region they were visiting. [ 33 ] He adds that the members of this community shared a distinctive lifestyle, a collective identity, and that their lifestyle was based on the use of the natural resources, the fish, and the wildlife to feed, clothe, and shelter themselves, as well as for barter. [ 34 ] The defendant refers to an

article published in the La Presse newspaper in 1885 reporting the uprising of the "Paspébiac Métis" with the likely purpose of establishing that the Métis presence in that region was acknowledged back then. [ 35 ] In other words, the historic community to which the defendant refers is allegedly made up of seventeen families who settled in the region of Listiguj in 1760 and their descendants who frequented and inhabited the territory that includes the Gaspésie, the southern coastline of Quebec, and the northern coastline of New Brunswick.

This community is itself part of the greater Métis community that inhabits the vast territory described above. [ 36 ] In its motion to dismiss, the D.P.P. points out that the defendant's notice does not refer to a historic community living together in a single region and fishing the waters near New Carlisle where the offence was allegedly committed. [ 37 ] The Court agrees that this part of the notice is lacking in particulars as to the boundaries of the territory inhabited by the historic community.

The region appears very large at first glance. [ 38 ] Yet, in Powley , the Supreme Court did not rule out the possibility that a Métis community may be spread out over a vast territory. It states: 12 ... A Métis community can be defined as a group of Métis with a distinctive collective identity, living together in the same geographic area and sharing a common way of life. The respondents here claim membership in the Métis community centred in and around Sault Ste. Marie.

It is not necessary for us to decide, and we did not receive submissions on, whether this community is also a Métis “people”, or whether it forms part of a larger Métis people that extends over a wider area such as the Upper Great Lakes. [ 39 ] On this point, the Court finds that, at first glance, the defendant's notice makes it possible to identify historic community descended from the seventeen Listiguj families, although the defendant may be required to submit further details. 3.

Identification of the Contemporary Rights-Bearing Community [ 40 ] In Powley , the Supreme Court defined a contemporary Métis community as follows: 24. Aboriginal rights are communal rights: They must be grounded in the existence of a historic and present community, and they may only be exercised by virtue of an individual’s ancestrally based membership in the present community. The trial judge found that a Métis community has persisted in and around Sault Ste. Marie despite its decrease in visibility after the signing of the Robinson-Huron Treaty in 1850.

While we take note of the trial judge’s determination that the Sault Ste. Marie Métis community was to a large extent an “invisible entity” ( [1999] 1 C.N.L.R. 153, at para. 80 ) from the mid-19th century to the 1970s, we do not take this to mean that the community ceased to exist or disappeared entirely. [ 41 ] In his notice, the defendant states that the descendants of this historic community have continued to inhabit the territory.

They have lived at the mouths of rivers, on the outskirts of the main settlements, or on concessions. [ 42 ] Even though these Métis did not tend to identify as such during the 18th and 19th centuries, they remained in the region and continued to ensure their survival by living off the land and fishing. [ 43 ] The defendant adds that various experts will be able to demonstrate that the community has continued to exist. [ 44 ] The Court agrees that particulars will have to be brought by the defendant regarding the boundaries of the territory inhabited by this contemporary community. 4.

Verification of the Claimant’s Membership in the Relevant Contemporary Community [ 45 ] In Powley , the Supreme Court specifies that the three following elements must be established by the claimant to establish his membership in the contemporary Métis community: 1. self-identification 2. ancestral connection 3. community acceptance. [ 46 ] In his notice, the defendant states that he identifies as Métis, he is a founding member of the Communauté métisse de la Gaspésie , and he is accepted by the community and by the political organization.

He states that his forebears, namely the Huards, also known as the Hyards, belonged to the historic community. [ 47 ] The Court shares the D.P.P.'s position regarding the insufficiency of the facts alleged by the defendant. The notice does not refer to the nature of the defendant's genealogical relationship to the family by the name of Huard, also known as Hyard, or to the historic community.

5. Identification of the Relevant Time Frame [48] In Powley, the Supreme Court distinguished the situation of the Métis from that of other aboriginal peoples with respect to therelevant time frame criterion: 37. The pre-contact test in Van der Peet is based on the constitutional affirmation that aboriginal communities are entitled to continuethose practices, customs and traditions that are integral to their distinctive existence or relationship to the land.

By analogy, the test forMétis practices should focus on identifying those practices, customs and traditions that are integral to the Métis community’s distinctiveexistence and relationship to the land. This unique history can most appropriately be accommodated by a post-contact but pre-control testthat identifies the time when Europeans effectively established political and legal control in a particular area. The focus should be on theperiod after a particular Métis community arose and before it came under the effective control of European laws and customs.

This pre-control test enables us to identify those practices, customs and traditions that predate the imposition of European laws and customs on theMétis. [49] The defendant places the relevant period between the origins of the historic community in the 18th century and 1850, when theUnited Province of Canada entrenched its control over the territory. [50] This appears to be sufficient at first glance. 6.

Determination of Whether the Practice is Integral to the Claimants’ Distinctive Culture [51] In his notice, the defendant states that fishing for food and for barter was an integral part of the lifestyle of the Métis living inthe Gaspésie and Lower St. Lawrence. In his view, it was a determinative characteristic of their connection to the land. [52] In its motion to dismiss, the D.P.P. relies on the Supreme Court judgment in R. v.

Van der Peet, (SCC), [1996]2 S.C.R. 507, to argue that the right to fish for food is not a fundamental element of the distinctive Métis culture because it is common toall human societies. [53] The Court does not share this

interpretation of Van der Peet. The notion of distinctive practice must not be confused with that ofdistinct practice. In Van der Peet, Lamer J., for the majority, wrote: 71. The standard which a practice, custom or tradition must meet in order to be recognized as an aboriginal right is not that it be distinctto the aboriginal culture in question; the aboriginal claimants must simply demonstrate that the practice, custom or tradition isdistinctive. A tradition or custom that is distinct is one that is unique -- "different in kind or quality; unlike" (Concise Oxford Dictionary,supra).

A culture with a distinct tradition must claim that in having such a tradition it is different from other cultures; a claim ofdistinctness is, by its very nature, a claim relative to other cultures or traditions. By contrast, a culture that claims that a practice, customor tradition is distinctive – "distinguishing, characteristic" – makes a claim that is not relative; the claim is rather one about the culture'sown practices, customs or traditions considered apart from the practices, customs or traditions of any other culture.

It is a claim that thistradition or custom makes the culture what it is, not that the practice, custom or tradition is different from the practices, customs ortraditions of another culture. The person or community claiming the existence of an aboriginal right protected by s. 35(1) need only showthat the particular practice, custom or tradition which it is claiming to be an aboriginal right is distinctive, not that it is distinct. 72. That the standard an aboriginal community must meet is distinctiveness, not distinctness, arises from the recognition in Sparrow,supra, of an aboriginal right to fish for food.

Certainly no aboriginal group in Canada could claim that its culture is "distinct" or unique infishing for food; fishing for food is something done by many different cultures and societies around the world. [54] Admittedly, in his notice, the defendant is not very explicit about the reasons that lead him to conclude that fishing for food is adistinctive practice of his community. Because of the nature of the aboriginal right claimed, however, additional information may besubmitted at a later time on this question. 7.

Establishment of Continuity Between the Historic Practice and the Contemporary Right Asserted [55] On this point, the defendant relies upon expert evidence that he intends to adduce, which will demonstrate that fishing for foodhas remained an important characteristic of the community. He does not refer to any factual data that would indicate that the practice offishing for food has continued since the origins of the historic Métis community. [56] Additional information may be submitted on this issue. 8.

Determination of Whether or Not the Right Was Extinguished [57] The defendant asserts that his right is not extinguished. 9. If There Is a Right, Determination of Whether There Is an Infringement [58] The defendant merely states that the provisions of the Fisheries Act limiting the number of fish that may be caught infringes onhis right to fish for food and for barter and that this infringement cannot be justified as a reasonable limit. [59] He does not state how this quota infringes his right to fish for food or for barter.

These particulars must be given. [60] When determining the admissibility of the notice of intention under

article 95 C.C.P., the Court need not assess the defendant'schances of success on the merits or ask itself whether the question raised is one of public interest. It need only determine whether thedefendant's pretensions and grounds are sufficiently precise in the notice to effectively define the dispute to be decided and allow theAttorney General to take a position and prepare his contestation, if any. [61] Even though the defendant's notice in this case is incomplete in many respects, it is not so incomplete as to be declared

inadmissible and bar him from submitting his constitutional arguments on the merits. [ 62 ] Considered as a whole, the notice contains enough information to define the dispute.

Indeed, the right claimed, the historic community at issue, the relevant pre-control period and the distinctive nature of the practice of fishing are prima facie identified. [ 63 ] The other elements of the framework set out in Powley that must be fleshed out may be the subject of an order for particulars or an amended notice, namely with respect to the defendant's ascending geneology and his connection to the historic community referred to in his notice. [ 64 ] The motion to dismiss is therefore dismissed. __________________________________ RICHARD CÔTÉ, J.C.Q. Mtre J.M.

Denis Lavoie For the prosecutor-petitioner Mtre Frédéric Maheux For the Attorney General of Quebec Mtre Pierre Montour For the defendant-respondent Date of hearing: October 16, 2012