2021 QCCA 816, 2021 QCCA 816

Edgar c. Director of Criminal and Penal Prosecutions 2021 QCCA 816 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-007557-216 (500-36-009350-193, 500-01-165640-175) DATE: May 14, 2021 BEFORE THE HONOURABLE FRÉDÉRIC BACHAND, J.A. ROBERT EDGAR APPLICANT – Accused v.

DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS RESPONDENT – Prosecutor JUDGMENT [ 1 ] The applicant, who was charged with criminal harassment against Côte-Des-Neiges—Notre-Dame-De-Grâce Borough Mayor Susan Montgomery, seeks leave to appeal from a judgment rendered on March 26, 2021, by the Superior Court, District of Montreal (the Honourable Pierre Labrie) [1] allowing the Crown’s appeal from a judgment of acquittal rendered on June 13, 2019, by the Court of Québec, District of Montreal (the Honourable Flavia K.

Longo). [2] [ 2 ] The Superior Court ordered a new trial after finding that the trial judge had erred in law by relying on myths and stereotypes while determining that a reasonable doubt existed as to whether the applicant’s behaviour had caused Ms. Montgomery to fear for her safety within the meaning of section 264(1) Cr.C. [ 3 ] Specifically, the Superior Court judge held that the trial judge had drawn improper inferences from a video of an incident involving Ms. Montgomery and the accused that took place in March 2018. The trial judge found that the video contradicted, firstly, Ms.

Montgomery’s testimony on some aspects of the incident and, secondly, her claim regarding the impact of the applicant’s behaviour on her state of mind.

The Superior Court judge had no issue with the video being taken into consideration, [3] but he concluded that reliance on myths and stereotypes had led the trial judge to place too much weight on that evidence. [4] * * * [ 4 ] The applicant contends that the Superior Court judge made two significant errors of law. [ 5 ] The first was to mischaracterize the trial judge’s reasonable doubt as reliant on myths and stereotypes when, in truth, her analysis was rather based on a permissible use of the evidence in the record.

The applicant adds that it is important that the Court clarify the distinction between improper stereotypical inferences and logical inferences drawn from the evidence, so that “the legitimate goal of recognizing the complexities of human behaviour is not interpreted in such a way as to erode accused persons’ right to full answer and defense.” [5] [ 6 ] The second error allegedly made by the Superior Court was to conflate two of the elements of criminal harassment: the requirement that another person be harassed and the requirement that the harassing behaviour cause that other person to fear for their safety or the safety of anyone known to them.

The applicant contends that the proposed appeal would provide the Court with the opportunity to clarify the boundaries and interactions between these two elements.

He further adds that such clarifications would be “of particular importance given the ever-extending emphasis placed by the courts on the notion of psychological security.” [6] [ 7 ] The Crown responds that the applicant’s position is based on a misinterpretation of the judgments below and that the Superior Court judge was correct in finding that the trial judge had improperly relied on myths and stereotypes regarding the manner in which one is expected to react to harassing behaviour. * * * [ 8 ] This application for leave to appeal is governed by section 839(1) C.Cr.

Therefore, leave can only be granted in relation to a ground of appeal involving a question of law alone, and provided that the question at issue “be sufficiently important and involve exceptional circumstances that compel the intervention of the Court.” [7] As was further explained by the Ontario Court of Appeal in R.R. : [8]

[L]eave 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. [ 9 ] I am of the view that both proposed grounds of appeal are arguable and that they raise important legal issues that have clear significance beyond the four corners of the present case. I am also of the view that those issues warrant the Court’s attention in the context of the present case.

FOR THESE REASONS, THE UNDERSIGNED: [ 10 ] GRANTS the application for leave to appeal; [ 11 ] AUTHORIZES the applicant to appeal the judgment rendered by the Superior Court on March 26, 2021. FRÉDÉRIC BACHAND, J.A. Mtre Mairi Springate ME JEAN-CLAUDE DUBÉ, AVOCATS For the Applicant Mtre Marianna Ferraro DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For the Respondent Date of hearing: May 10, 2021