2018 QCCA 658, 2018 QCCA 658

Paquette c. R. 2018 QCCA 658 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-006708-182 (550-36-000006-187) DATE: April 23, 2018 IN THE PRESENCE OF THE HONOURABLE ROBERT M. MAINVILLE, J.A. LUC PAQUETTE APPLICANT — Accused v. HER MAJESTY THE QUEEN RESPONDENT — Prosecutor JUDGMENT [ 1 ] On October 7, 2016, Luc Paquette (the “applicant”) was charged with the following offences by way of indictment: 1. Le ou vers le 6 octobre 2016, à Val-des-Monts, district de Gatineau, a produit du cannabis (marihuana), commettant ainsi l’acte criminel prévu à l’ article 7(1)

(2) b) de la Loi règlementant certaines drogues et autres substances . 2. Le ou vers le 6 octobre 2016, à Val-des-Monts, district de Gatineau, a eu en sa possession de la résine de cannabis (haschich), commettant ainsi l’acte criminel prévu à l’ article 4(1)

(4) a) de la Loi règlementant certaines drogues et autres substances . 3. Le ou vers le 6 octobre 2016, à Val-des-Monts, district de Gatineau, a eu en sa possession, en vue d’en faire le trafic, du cannabis, commettant ainsi l’acte criminel prévu à l’ article 5(2)

(3) a) de la Loi règlementant certaines drogues et autres substances . [ 2 ] On January 18, 2018, the applicant filed with the Court of Quebec an “ Application to Quash ” seeking an order declaring that the charges against him are of no force and effect and seeking to have them stayed on the basis that pursuing them in the context of the imminent legalisation of marijuana brings the administration of justice into disrepute. [ 3 ] On January 26, 2018, a judge of the Court of Quebec set March 16, 2018 as the date to hear the Application to Quash and postponed hearing any witnesses to a date to be determined pending the outcome of that application. [ 4 ] On March 2, 2018, the applicant filed an “ Application for mandamus or prohibition ” with the Superior Court of Quebec.

In this motion, the applicant submitted that his Application to Quash should have been heard at the January 26, 2018 hearing and sought a mandamus forcing the presiding judge to rule on the matter.

The applicant also sought an order prohibiting that a trial be held without a preliminary inquiry and prohibiting any preliminary inquiry before his Application to Quash has been decided. [ 5 ] On March 16, 2018, before another judge of the Court of Quebec, the Crown proposed to withdraw the first indictment and to modify the third indictment so as to specifically refer to subsection 5(2) and paragraph 5(3)a.1) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19. An order to this effect was issued.

The Application to Quash was then set to be heard before a judge of the Court of Quebec on April 25, 2018. [ 6 ] On April 9, 2018, a judge of the Superior Court of Quebec, Justice Carole Therrien, ruled that the Application for mandamus or prohibition was moot since the Court of Quebec had set April 25, 2018 as the date on which the Application to Quash would be heard. [ 7 ] On April 17, 2018, the applicant filed a notice in this Court appealing Justice Therrien’s ruling. He also filed an application to stay his trial pending the outcome of this appeal.

It is this last application which I must decide. [ 8 ] I agree with Justice Therrien that the applicant’s Application for mandamus or prohibition is moot. That application essentially seeks orders to have the Application to Quash decided and prohibiting that a trial be held without a preliminary inquiry or any preliminary inquiry be pursued before this Application to Quash has been decided.

Since the applicant’s Application to Quash is scheduled to be heard on April 25, 2018 - thus before any preliminary inquiry or trial is held - the remedies sought by the Application for mandamus or prohibition have been made available de facto to the applicant. Moreover, it is premature at this time to determine whether or not the applicant is entitled to a preliminary inquiry, that issue being ripe for determination only once the Application to Quash has been decided.

FOR THESE REASONS, THE UNDERSIGNED: [ 9 ] DISMISSES the application for a stay of proceedings. ROBERT M. MAINVILLE, J.A. Luc Paquette In person M tre Sandra Bonanno Directeur des poursuites criminelles et pénales For respondent Date of hearing: April 23, 2018