2018 QCCA 438, 2018 QCCA 438

Pelletier c. R. 2018 QCCA 438 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006131-161 (550-01-076628-140) MINUTES OF THE HEARING DATE: MARCH 19, 2018 CORAM: THE HONOURABLE FRANÇOIS DOYON , J.A. MANON SAVARD , J.A. ROBERT M. MAINVILLE , J.A. APPELLANT COUNSEL BERNARD PELLETIER Mtre DAVID ANBER (David Anber’s Law Office) RESPONDENT COUNSEL HER MAJESTY THE QUEEN Mtre SANDRA BONANNO (Directeur des poursuites criminelles et pénales) On appeal from a judgment rendered on March 22, 2016 by the Honourable Justice Valmont Beaulieu of the Court of Québec, District of Gatineau. DESCRIPTION : Guilty verdict – Contempt of court – Intoxication – Burden of proof

Clerk: Ermioni Tomaras Courtroom: Antonio-Lamer HEARING 9:33 Commencement of the hearing. Identification of counsel. Submissions by Mtre Anber. 9:52 Submissions by Mtre Bonanno. 10:03 Rebuttal by Mtre Anber. 10:04 Recess of the hearing. 10:08 Resumption of the hearing. BY THE COURT: For reasons that will be rendered subsequently this week, the appeal is dismissed — see page 3. Conclusion of the hearing. (

s) Ermioni Tomaras Clerk

BY THE COURT: JUDGMENT For reasons to follow later, THE COURT : [ 1 ] DISMISSES the appeal. FRANÇOIS DOYON , J.A MANON SAVARD , J.A. ROBERT M. MAINVILLE , J.A. Pelletier c. R. 2018 QCCA 438 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-006131-161 (550-01-076628-140) DATE: March 21, 2018 CORAM: THE HONOURABLE FRANÇOIS DOYON, J.A. MANON SAVARD, J.A. ROBERT M. MAINVILLE, J.A. BERNARD PELLETIER APPELLANT — Accused v. HER MAJESTY THE QUEEN RESPONDENT — Prosecutrix REASONS FOR THE JUDGMENT PRONOUNCED ON MARCH 19, 2018

[1] On March 19, 2018, the Court dismissed, with reasons to follow, an appeal from a judgment of the Court of Quebec, District of Gatineau (judge Valmont Beaulieu), rendered on March 22, 2016, which convicted the appellant of contempt of court for having presented himself in a state of intoxication in open court on March 16, 2016. The reasons of the Court for dismissing this appeal are the following. [ 2 ] Counsel for the appellant acknowledges that impairment of the ability to participate in Court proceedings resulting from self- induced intoxication can be contemptuous.

He also recognizes that the signs of impairment witnessed by the trial judge on March 16, 2016 allow a reasonable inference that the appellant was then under the influence of drugs or alcohol. However, in his view, that inference was not the only one available to the trial judge. Counsel for the appellant advances that alternative inferences could be that the appellant’s behaviour was the product of mental health issues, medical distress or an adverse reaction to lawfully consumed medication.

He concludes from this that the evidence did not meet the standard of proof beyond a reasonable doubt since it did not dispel these alternative inferences. [ 3 ] It is true that the prosecution may need to negate reasonable possibilities which flow from the evidence in order to secure a conviction, but the prosecution is certainly not required to negate every possible conjecture which might be raised . [1] The prosecution is required to negate plausible theories or reasonable possibilities supporting the innocence of the accused which flow from the evidence and which are based on logic and experience.

As explained in Villaroman , “it is fundamentally for the trier of fact to draw the line in each case that separates reasonable doubt from speculation. The trier of fact’s assessment can be set aside only where it is unreasonable.” [2] [ 4 ] In this case, the hypothetical alternative explanations advanced by the appellant’s counsel were found by the trial judge to be speculative because they did not have any basis in the evidence. [ 5 ] It is true that an alternative theory to guilt raising a reasonable doubt is not rendered speculative by the mere fact that it arises from a lack of evidence.

Thus, a certain gap in the evidence may result in inferences other than guilt, but those inferences must be reasonable given the evidence assessed logically and in light of human experience and common sense. [3] In this case there was no gap in the evidence. That evidence included signs of the obvious intoxication and impairment of the appellant which the judge witnessed himself. It was therefore open to the judge to conclude from the evidence that the appellant was impaired by the effect of his voluntary consumption of drugs or alcohol. [ 6 ] As explained by Dickson J. (as he then was) in Graat v.

The Queen , intoxication and impairment by alcohol are matters which can be resolved on the basis of common ordinary knowledge and experience. [4] This is particularly the case here where the appellant had previously appeared before the trial judge never exhibiting a state of intoxication. This provided the trial judge with a benchmark by which to measure the appellant’s conduct on March 16, 2016 allowing the judge to discard as speculative the hypothetical alternative explanations advanced by counsel for the appellant. The trier of fact need not act on alternative

interpretations of the circumstances that he considers to be unreasonable; alternative inferences must be reasonable, not just possible. [5] [ 7 ] The obvious signs of intoxication and impairment witnessed by the judge himself on March 16, 2016 constituted sufficient evidence to establish the appellant’s guilt beyond a reasonable doubt. This is not a reversal of the burden of proof as appellant’s counsel claims.

Indeed, when a prima facie case of guilt beyond a reasonable doubt is established, the mere tactical pressure on the accused to respond in order to raise a reasonable doubt does not result in a reversal of the burden of proof, nor does it offend the right to silence or the presumption of innocence : [6] [50] There is an important difference between a burden of proof with regard to an offence or an evidentiary burden, and the tactical need to respond when the Crown establishes a prima facie case, in order to raise a reasonable doubt about it. “[T]he criminal law does not allocate an evidential burden to the accused to refute the Crown’s case and he or she may decline to adduce any evidence.

Nevertheless, if the accused decides not to call any evidence, he or she runs the risk of being convicted” (Sopinka, Lederman and Bryant, supra , at para. 3.17).

Where there is neither a legal obligation nor an evidentiary burden on the accused, the mere tactical pressure on the accused to participate in the trial does not offend the principle against self-incrimination (s.11 ( c )) or the right to a fair trial (s.11 ( d )). [ 8 ] Counsel for the appellant also raises very briefly in his factum the issue of the sufficiency of the trial judge’s reasons, without elaborating on how exactly these reasons are inadequate.

Sheppard and subsequent cases advocate a functional context-specific approach to the adequacy of reasons in a criminal case: the reasons must be sufficient to fulfill their functions of explaining why the accused was convicted or acquitted, providing public accountability and permitting effective appellate review. [7] It follows that this Court, in considering the sufficiency of reasons, should read the reasons as a whole, in the context of the evidence, the arguments and the trial, mindful of the purposes or functions for which they are delivered. [8] These purposes “are fulfilled if the reasons, read in context, show why the judge decided as he or she did.” [9] The trial judge’s reasons amply meet this threshold. [ 9 ] There are the reasons why the Court dismissed the appeal on March 19, 2018.

FRANÇOIS DOYON, J.A. MANON SAVARD, J.A. ROBERT M. MAINVILLE, J.A.

M tre David Anber DAVID ANBER’S LAW OFFICE For appellant M tre Sandra Bonanno DIRECTEUR DES POURSUITES CRIMINELLES ET PÉNALES For respondent Date of hearing: March 19, 2018