2023 QCCQ 718, 2023 QCCQ 718

Directeur des poursuites criminelles et pénales c. Karniol 2023 QCCQ 718 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTREAL TOWN OF MONTREAL CRIMINAL AND PENAL CHAMBER No: 500-61-548847-228 DATE: March 2, 2023 ______________________________________________________________________ BY THE HONOURABLE JACQUES ROUILLIER, JUGE DE PAIX MAGISTRAT ______________________________________________________________________ LE DIRECTEUR DES POURSUITES CRIMINELLES ET PÉNALES Plaintiff v.

ARON KARNIOL Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ INTRODUCTION [ 1 ] The defendant is charged with having been outside his domicile while the 21:00 to 5:00 curfew was in effect contrary to article 123(8) and 139 of the Public health act. (RLRQ c.

S-2.2) [ 2 ] The evidence reveals that the defendant was walking on Bernard street at around 2h30 in the morning when he was intercepted by the police. [ 3 ] After identifying the defendant the policeman considered that he had no legal justification for not respecting the curfew. [ 4 ] They gave him the present ticket. [ 5 ] The defendant does not deny he was outside his domicile after the curfew hours. [ 6 ] He told the policeman that he had just finished school and was heading home.

He showed the policeman a document confirming the address of the school. [ 7 ] In his testimony, the defendant explains that May 17, 2021, was a Jewish holiday called “Shavuot”. [ 8 ] During this holiday the participant spend part of their night studying religious scripture. [ 9 ] The defendant produced a document describing the origin of the holiday and what is expected of the participant (exhibit D-1). [ 10 ] He explains that he was studying religious scriptures until two o’clock in the morning and was on his way home after leaving the synagogue. [ 11 ] The reason it was so late is because according to tradition on Shavuot night the studying has to go on till sunrise.

ISSUE TO CONSIDER [ 12 ] Does attending a study session during a religious holiday fall within the exception provided by the Public Health act as to a valid reason for a person to be outside of his domicile? CONTEXT [ 13 ] The Quebec government instituted a curfew through the Public health act for the Montreal starting April 11, 2021. The original curfew was from 20:00 to 5:00. On May 3rd it modified the curfew from 21:30 to 5:00. [ 14 ] During the curfew the government provide for certain exceptions for people to be outside their residence. [ 15 ] One of them was attending a learning institution.

[ 16 ] A learning institution is defined as an accredited school, college or university that provides programs where student can acquire intellectual knowledge or trade. [ 17 ] In the present case, the defendant was studying religious scriptures within the context of a Jewish holiday. [ 18 ] The holiday calls for the study of religious scripture for the whole day until sunrise the next day as stated by the defendant and confirmed by exhibit D-1. [ 19 ] It is in that context that the defendant was at the Synagogue the night of the infraction.

ANALYSIS [ 20 ] The crown has the burden to prove beyond a reasonable doubt all essential elements of the infraction. In the present case the defendant admits he was outside his domicile after the beginning of the curfew. [ 21 ] The defendant has no burden of proof.

If the Court has a reasonable doubt as to the guilt of the defendant after analyzing the whole of the evidence, the defendant should benefit from it and be acquitted. [ 22 ] In the present case the defendant evokes and exception as to the respect of the curfew in that he was coming back from school. [ 23 ] When invoking an exception, it is incumbent upon the defendant to establish that he has the benefit of an exemption, excuse or justification provided by law as stated in article 64 (2) of the Code of penal procedure (RLRQ c C-25.1 ). [ 24 ] He therefore must prove by balance of probability that all the criteria of the exception are proven. [ 25 ] The defendant was attending a study session in a Synagogue during a Jewish holiday in the wee hours of the morning. [ 26 ] The Court after analyzing the whole of the evidence cannot conclude that the defendant was attending a learning institution for the following reason. [ 27 ] The main purpose of his presence at the synagogue was to observe the Jewish holiday of Shavuot. [ 28 ] The mere fact that a study session of holy scriptures was held during the religious holiday does not amount to attending an institute of learning. [ 29 ] The fact that it was held in the middle of the night confirms that the principal reason to be at the synagogue was to observe the holiday. [ 30 ] Study session are usually held during the day or at least before midnight. [ 31 ] The Shavuot is a Jewish holiday to remind the people of Jewish faith of the faithful night when the Israelites overslept and had to be waken by Moses on the way to meeting the almighty. (exhibit D-1). [ 32 ] The tradition is to study the holy scriptures till sunrise as a reminder not to fall asleep. [ 33 ] It is therefore clear for the Court that the presence of the defendant at the synagogue after midnight was to observe the Jewish holiday.

The study session was an accessory to the observance of the holiday. It was not part of a program of study given by a recognize institute of learning.

CONCLUSION [ 34 ] The Court is therefore satisfied that the prosecution did prove all the essential elements of the infraction beyond a reasonable doubt. [ 35 ] That the defendant did not prove by balance of probability that he was attending an institute of learning and therefore had no legal justification to be outside his house during the curfew. [ 36 ] FOR ALL THOSE REASONS, THE COURT: [ 37 ] DECLARES the defendant guilty of the infraction laid against him. [ 38 ] CONDEMN the defendant to pay the a fine of $1000.00 plus cost. [ 39 ] DELAY 90 days to pay. __________________________________ JACQUES ROUILLIER, juge de paix magistrat Me Jean-Philippe Leroux Directeur des poursuites criminelles et pénales

Plaintiff’s attorney Aron Karniol Stands alone Date of hearing: February 27, 2023