2012 QCCA 924, 2012 QCCA 924

Matchewan c. Centre communautaire juridique de l'Outaouais 2012 QCCA 924 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-022618-128 ( 500-17-067645-112 ) MINUTES OF THE HEARING DATE: May 18, 2012 THE HONOURABLE CLÉMENT GASCON, J.A. PETITIONER ATTORNEY JEAN MAURICE MATCHEWAN Mtre Peter Shams (ABSENT) RESPONDENT ATTORNEY CENTRE COMMUNAUTAIRE JURIDIQUE DE L'OUTAOUAIS Mtre Christine Fortin (ABSENT) LORANGER MARCOUX MIS EN CAUSE ATTORNEY COMITÉ DE RÉVISION DE LA COMMISSION DES SERVICES JURIDIQUES Mtre Gilles Daoust (ABSENT) Commission des services juridiques

MOTION FOR LEAVE TO APPEAL FROM A JUDGMENT RENDERED ON MARCH 27, 2012, BY THE HONOURABLE THOMAS M. DAVIS OF THE SUPERIOR COURT IN THE DISTRICT OF MONTREAL Clerk: Annick Nguyen Court Room: RC.18 HEARING Continuation of May 16, 2012, hearing. Judgment – See page 3. Annick Clerk JUDGMENT [ 1 ] Jean Maurice Matchewan seeks leave to appeal a judgment of Davis J. of the Superior Court dated March 27, 2012. The judgment dismissed his Motion for Judicial Review of a decision of the Comité de Révision de la Commission des services juridiques dated August 11, 2011. That decision denied his request for a legal aid mandate pursuant to

Section 4.5 (3) of the Act Respecting Legal Aid and Provision of Certain Other Legal Services ( R.S.Q., c. A-14 , the « Legal Aid Act »). That

Section reads as follows: 4.5 (3) for the defense of a person, other than a young person, facing prosecution before a court for an offence under

an Act of the Parliament of Canada that is punishable on

summary conviction, or for the defense of a person, whether an adult or a person under 18 years of age, facing prosecution before a court under the Code of Penal Procedure (chapter C-25.1 ) where, in either case, upon conviction there is likelihood either of imprisonment or committal to custody, or of loss of means of earning a livelihood or where it is in the interests of justice that legal aid be granted to the accused, having regard to exceptional circumstances, for instance the seriousness of the matter or the complexity of the case; [ 2 ] Mr. Matchewan argues [1] that the appeal sought raises issues of importance that must be considered by the Court of Appeal, inasmuch as:

a) the trial judge rewrote in essence the Comité decision by concluding, with respect to a color-of-right defence that he intended to raise, that the demonstration of an honest belief was not exceedingly complex and that it was not unreasonable for the Comité to so conclude. However, Mr. Matchewan says, the Comité had not made this determination as indicated at paragraph [9] of its decision and as noted by

the judge himself at paragraph [14] of his reasons;

b) the trial judge opined, at paragraphs [41] to [43], that the Comité correctly exercised its discretion in concluding that the interest of justice criteria found at

Section 4.5 (3) of the Legal Aid Act was primarily concerned with the particular interest of the individual involved rather than the general interest. For Mr. Matchewan, the judge wrongly followed a prior judgment to the same effect of Mongeau J. ( Faucher v. Comité de révision de la Commission des services juridiques , 2006 QCCS 5515 ). He adds that seldom does the Court of Appeal look at the applicable criteria dealing with the granting or refusal of legal aid mandates. [ 3 ] The Centre Communautaire Juridique de l'Outaouais contests the Application for leave.

In a situation where all parties agreed that the standard of review was reasonableness and where the Comité exercised the discretion that the Legal Aid Act confers upon it, this is not a case that falls within the limited scope of leave to appeal provided for at Article 26 (2) (4°) C.C.P . [ 4 ] Considering that the appeal sought raises what seems to be a question of principle concerning the authority of the court of review to rewrite or add to the reasons of the administrative decision makers, that it also raises what appears to be a new issue with regard to the notion of interest of justice of

Section 4.5 (3) of the Legal Aid Act and the balance, if any, to maintain in this respect between the particular interest of an individual and the general interest , and that, nowadays, access to justice remains at the forefront of the concerns of the judiciary, I am of the view that the case raises questions that should be submitted to the Court. [ 5 ] Despite the very able argument of Counsel for the Centre Communautaire, I do not believe that the usual deference of the review courts in regard of the application of the reasonableness standard is sufficient to deny leave here. [ 6 ] Given that the appeal should proceed on the basis of the fast track procedure pursuant to rule 50 of the Rules of the Court of Appeal in civil Matter, which reads as follows: 50.

Standard or fast track procedure. When granting leave to appeal from a final judgment, the Judge or the Court determines whether the appeal will proceed on the basis of the standard procedure or the fast track procedure. [ 7 ] Given rules 54 and 55 of the Rules of the Court of Appeal in Civil Matters , which reads as follows: 54. Abandonment . Where the appellant’s argument and documents standing in lieu of appellant's factum are not served and filed within the established time limit, the appeal shall be deemed to be abandoned and

article 503.1 of the Code of Civil Procedure shall apply, mutatis mutandi . 55. Foreclosure . Where the respondent’s argument and, if applicable, documents standing in lieu of the factum are not served and filed within the established time limit, the respondent shall be foreclosed from filing and

article 505 of the Code of Civil Procedur e shall apply, mutatis mutand i.

FOR THESE REASONS, THE UNDERSIGNED : [ 8 ] GRANTS the Motion; [ 9 ] AUTHORIZES the Applicant to file an appeal from the judgment rendered on March 27, 2012 by Davis J. of the Superior Court, District of Montreal, in file number 500-17-067645-112, on the basis of the fast track procedure; [ 10 ] ORDERS the appellant, after having served a copy upon the respondent, to file in the office of the Court, no later than June 22, 2012 , four copies of a written argument not exceeding 15 pages , of the documents that would normally have made up schedules I, II and III of his factum and of his authorities; [ 11 ] ORDERS the respondent, after having served a copy upon the appellant, to file in the office of the Court, no later than July 31, 2012 , four copies of a written argument not exceeding 15 pages , of his supplementary documents, and of his authorities; [ 12 ] ORDERS the parties to present their written arguments on 21.5 cm X 28 cm (8 ½ X 11 in.) paper, with line spacing of at least 1.5 lines (except in the case of quotations, which must be single-spaced and indented), and the computer-prepared text shall be in 12-point type, with no more than 12 characters per 2.5 cm, the use of the font ARIAL-12 being strongly recommended ; [ 13 ] ORDERS that the documents filed by the parties carry a continuous pagination or tabs, a front cover and a general table of contents; [ 14 ] DEFERS the file to the Master of the rolls to determine the date for a 60 minutes hearing; [ 15 ] Costs to follow.

CLÉMENT GASCON, J.A.