2023 QCCA 1465, 2023 QCCA 1465

Agence du revenu du Québec c. Chopra 2023 QCCA 1465 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-007976-234 ( 500-36-010148-214 ) MINUTES OF HEARING DATE: November 17, 2023 CORAM: THE HONOURABLE MARTIN VAUCLAIR, J.A. PATRICK HEALY, J.A. MICHEL BEAUPRÉ, J.A.

APPELLANT COUNSEL Agence du revenu du Québec Mtre catherine beaupré ( Larivière Meunier (Revenu Québec) ) Absent RESPONDENT COUNSEL Rahid Chopra Mtre christopher r. mostovac ( Starnino Mostovac ) Absent On appeal from a judgment rendered on February 13, 2023 by the Honourable Gregory Moore of the Superior Court , District of Montreal . NATURE OF THE APPEAL: Appeal dismissed by the Superior Court – Acquittal in the Court of Quebec – Absence of recording and transcription –

Article 11(

h) of the Canadian Charter of Rights and Freedoms . Clerk at the hearing : Anne Dumont Courtroom: Pierre-Basile-Mignault HEARING

Continuation of the hearing held on November 15, 2023. The parties were excusedfrom appearing in Court. BY THE COURT: Judgment – see page 3. Anne Dumont, Clerk at the hearing JUDGMENT [1] This is an appeal by leave of a single judge[1] against a decision of the Superior Court[2] to dismiss an appeal against acquittals pronounced by the Court of Quebec[3] on five counts under the Tax Administration Act (“the Act”).[4] The Superior Court dismissed theappeal on the basis that to proceed by a new trial was precluded by the protection against double jeopardy guaranteed by

section 11(

h) ofthe Canadian Charter of Rights and Freedoms. The appellant submits that the decision of the Superior Court deprived it of the statutoryright of appeal provided by

section 74 of the Act. [2] The acquittals pronounced by the Court of Quebec were recorded in the minutes of the trial. Upon review the appellantdiscovered that the record was incomplete and could not be transcribed in full. Substantial portions of the evidence and the reasons forjudgment at trial are not available for purposes of appeal. These deficiencies were not known at the time in the Court of Quebec and itappears that those proceedings were conducted in accordance with standard procedures that apply in a court of record at first instance.

Atthe hearing the appellant confirmed that no attempt was made to ascertain with the judge whether a version of the reasons was available.The appellant nevertheless appealed to the Superior Court on the grounds that the trial judge made specific errors of law in her decision.Whether there is any merit in these grounds cannot be ascertained because the incompleteness of the record at trial does not permitreliable identification of any error.

The present appeal can succeed only if the appellant can demonstrate that the Superior Court erred indismissing the appeal from the judgment of the Court of Quebec on the basis of double jeopardy. [3]

Section 281 of the Code of Penal Procedure[5] contemplates that an appeal to the Superior Court proceeds on the record of thecase in first instance but it also grants to the Superior Court a discretion to conduct the appeal by way of a trial de novo. 281. The hearing of an appeal shall be based on the record prepared in accordance with the court regulations.

Notwithstanding the foregoing, on the application of one of the parties, the appeal may be heard by way of a new hearing where,because of the state of the record or for any other cause, the judge considers it preferable in the interests of justice to hear the appeal inthe form of a new hearing. [4] In the present matter there could be no appeal on the record under the first paragraph of

section 281 because a complete recordwas not preserved due to mechanical difficulties that were not attributable to the trial judge or the parties. These difficulties were onlydetected after the acquittals were pronounced and recorded in the minutes of the trial. The appeal was initiated within the applicable timelimits, thus giving jurisdiction to the appellate court, but in the absence of a complete record it could proceed only by exception underthe second paragraph of

section 281 if upon application the Superior Court considered it preferable to hear the appeal in the form of anew trial. At the hearing the appellant confirmed that no application of this nature was made. The Superior Court specifically concluded that to proceed with a second trial was precluded by

section 11(

h) of the Charter.[6] [5] The Superior Court’s conclusion implies a prior conclusion that the respondent was “finally acquitted” in the Court of Quebec.Otherwise

section 11(

h) cannot apply. It is arguable that he was not because the appeal against the acquittals was initiated within thetime limits imposed by law, which means that the jeopardy of the accused had not been finally resolved while the appeal was pending. [6] In Thibault the Supreme Court decided that a statutory right of automatic appeal against an acquittal by way of a trial de novo isinconsistent with

section 11(

h) of the Charter whether or not the grounds allege or demonstrate errors of law. The Court concluded thatthis is precisely the type of abuse that

section 11(

h) seeks to prevent because a proceeding of this nature is not a true appeal but a new trial disguised as an appeal.[7] 21. With respect, I consider that the appeal by way of trial de novo mentioned in ss. 75 and 78 of the

Summary ConvictionsAct infringes s. 11(

h) of the Canadian Charter. It is true that an accused has not been finally acquitted until all the appeals provided forby law have been exhausted, as this Court held in R. v. Morgentaler, (SCC), [1988] 1 S.C.R. 30, at pp. 155-56: It was contended that s. 605(1)(a), giving the Crown a right of appeal against an acquittal in a trial court on any ground involving a

question of law alone offended ss. 7 and 11( d ) , (

f) and (

h) of the Charter . Reliance was placed primarily on s. 11 ( h ). There is a simple answer to this argument. The words of s. 11 ( h ), "if finally acquitted" and "if finally found guilty", must be construed to mean after the appellate procedures have been completed , otherwise there would be no point or meaning in the word "finally". 22. Naturally, the accused cannot avoid an appeal based on an error by the trial judge, since there was no real acquittal if the decision rendered was the result of an error.

However, one should not confuse an appeal which is decided in accordance with the record established in the lower court, and a hearing at which each party adduces his evidence over again and may even add to it in the event of any deficiency. 23. The proceeding in the case at bar is not a true appeal, but actually a new trial disguised as an appeal. As I mentioned, an appeal by trial de novo can raise questions of fact as well as questions of law; the appeal is as of right, and the prosecutor does not have to allege errors committed by the justice of the peace.

There can thus be a second trial even if the trial judgment was rendered in accordance with all the rules of law. In fact, it is just as if once the accused was acquitted the prosecutor filed a new information alleging the same offence based on the same facts. This is precisely the type of abuse that s. 11 (

h) seeks to prevent.

Section 11 (

h) guarantees the accused the right to plead autrefois acquit if the prosecution attempts to have him tried again for an offence of which he has been acquitted.

Section 75 of the

Summary Convictions Act bars him from raising this argument by authorizing the prosecution to repeat the trial as part of the appeal proceedings. The fact that a proceeding is called "appeal" is not sufficient to make it a true appeal and so prevent the accused from relying on s. 11(

h) of the Canadian Charter . 24. The word "finally" used in s. 11(

h) should not be deprived of all meaning, but care must also be taken not to give it a meaning contrary to the Canadian Charter . In respondent's submission, the Canadian Charter would have to be infringed—that is, the accused would have to go through two trials in addition to all the true appeals—before it could be said that he had been finally acquitted. I cannot agree with this

interpretation, as it contradicts the actual spirit of s. 11( h ). An accused who is acquitted by a judgment containing no error is "finally acquitted" within the meaning of s. 11 ( h ). Accordingly, I think that s. 75 of the

Summary Convictions Act , to the extent that it allows a prosecutor or complainant to appeal by way of trial de novo from an acquittal of the accused, is inconsistent with the rights secured by s. 11(

h) of the Canadian Charter . The accused retains the right to appeal his conviction by trial de novo , adducing his evidence over again in the Superior Court.

Section 78 is thus valid in its entirety, as it goes without saying that if an accused has the right to adduce evidence, the prosecutor may also use this right in an appeal brought by the accused. [ 7 ] For the purposes of this appeal it is not necessary to decide whether

section 11 (

h) conclusively bars proceeding de novo because that question is beside the point. The point is whether the Superior Court committed an error when it exercised its discretion to dismiss the appeal, which it could do if it concluded that such a proceeding is not in the interests of justice.

The Superior Court could decide in its discretion that such a proceeding is not in the interests of justice if it gives the appellant’s statutory right of appeal priority before the principle that the respondent should be protected from double jeopardy as compensation to the appellant for a failure to preserve a complete record of proceedings before the Court of Quebec. Whether the respondent was “finally” acquitted does not matter in the exercise of this discretion.

What matters is that the respondent was acquitted in the Court of Quebec and that a new trial would expose him again to jeopardy of conviction on the same charges for which the acquittals were pronounced. Similarly, as Lamer J. said in Thibault , the discretion to refuse proceeding de novo as an appeal against acquittal is amply justified by the “spirit” of protection against double jeopardy, which extends beyond the formal limitations in

section 11(

h) of the Charter to final adjudication of conviction or acquittal. [8] The “spirit” of protection against double jeopardy is the concept concerned in these reasons with reference to double jeopardy. [ 8 ] To repeat, it is not necessary in this appeal to determine whether

section 11 (

h) conclusively bars an appeal by way of a proceeding de novo because the same conclusion was amply justified by the discretionary decision of the Superior Court that such a proceeding was not in the interests of justice in the absence of any demonstrable error or any other sufficient justification.

For this reason there is no error in the conclusion of the Superior Court to dismiss the appeal against the acquittals pronounced by the Court of Quebec. [ 9 ] A record of proceedings in first instance that is incomplete or otherwise deficient might not be an obstacle to appeal when the accused suffers no prejudice, as the Supreme Court stated in Hayes : A new trial need not be ordered for every gap in a transcript.

As a general rule, there must be a serious possibility that there was an error in the missing portion of the transcript, or that the omission deprived the appellant of a ground of appeal. [9] [ 10 ] The dissenting judges in Hayes were of the same view on this point: I agree that the correct approach is to consider the effect of the gaps in relation to any possible prejudice to an appellant's ability to appeal a conviction. The central role which the charge to the jury assumes in an appeal of a jury's verdict must be considered.

However, not every gap in the transcript of a charge will justify granting a new trial. As a general rule, a new trial will only be ordered where there is some reason to believe that there may possibly have been an error in the passage of the charge which was missing or that the omission otherwise may have deprived the appellant of a ground of appeal. [10] [ 11 ] In Hayes the Court was concerned with the possibility of error or prejudice that would impair an appeal against conviction in an indictable matter, not an appeal against acquittal by the prosecution in a non-criminal

summary-conviction matter. These differences with the present case are significant in the assessment of prejudice alleged by the appellant, as illustrated by the decision in Thibault concerning the inconsistency between a statutory right of appeal against acquittal and principles of protection against jeopardy. [ 12 ] The only serious possibility of prejudice identified by the appellant is the impairment of its right of automatic appeal against the decision of the Court of Quebec concerning provincial regulatory offences.

The question on the appeal before the Superior Court was whether it is in the interests of justice to foreclose this possibility of prejudice by exposing the respondent for a second time by trial de novo to conviction and sanction for the same offences of which he was previously acquitted without being able to determine first whether the acquittal is vitiated by error. A record that is incomplete due to a technical function that is not attributable to the judge or the parties is not a sufficient reason in the absence of any demonstrable basis on which to establish a serious possibility of prejudice. In such

circumstances a person acquitted in first instance should not be expected to bear the consequences of a technical mishap by having to accept double jeopardy in the form of a new trial. Double jeopardy is not by itself a remedy for a record that is incomplete for this reason. [ 13 ] The principles of protection against double jeopardy apply only in favour of a person charged with an offence. The are other principles of res judicata that can apply in favour of the prosecution but the principles of double jeopardy do not because the prosecution is never in jeopardy of conviction and sanction.

The principles against double jeopardy are not neutral or equal between the parties and the possibility of prejudice to a person charged that lies in the risk of conviction and sanction in a new trial cannot be compared to the prejudice to the prosecution if its appeal is frustrated by a deficient record that is in no way attributable to the trial judge or the parties.

This prejudice to the person charged displaces any risk of prejudice to the appellant’s right of appeal even if the risk of double jeopardy and the protections against it do not fall within the strict limits of autrefois convict or autrefois acquit set in

section 11(

h) of the Charter by reference to a final conviction or acquittal. [ 14 ] The appellant supports its position with a claim that the absence of a record of the reasons for judgment in the Court of Quebec demonstrates the insufficiency of those reasons. This is not only beside the point but inaccurate. First, the Superior Court rightly concluded that reasons exist because the appellant was able to state grounds of appeal. Second, the appellant is mistaken to invoke the principles in Sheppard that reasons must be reviewable as a justification for its claims for a new trial.

Sheppard is concerned with deficiencies in the reasons given by the judge, not with the accidental absence of recorded reasons. The principle of the unintelligibility of reasons cannot be identified as a reviewable error if the reason for the deficiency cannot be identified in the work of the judge. The absence of the record does not demonstrate the inadequacy of the reasons or their non-existence. It demonstrates their absence from an accurate record that preserved them. FOR THESE REASONS THE COURT: [ 15 ] DISMISSES the appeal, without costs. MARTIN VAUCLAIR, J.A. PATRICK HEALY, J.A. MICHEL BEAUPRÉ, J.A.