2021 QCCA 1271, 2021 QCCA 1271

150187 Canada inc. c. Director of Criminal and Penal Prosecutions 2021 QCCA 1271 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-007621-210 ( 550-36-000023-190 , 550-36-000024-198) MINUTES OF HEARING DATE: 17 August 2021 THE HONOURABLE PATRICK HEALY, J.A. APPLICANT COUNSEL 150187 canada inc. Mtre Karl-Emmanuel Harrison ( Karl-Emmanuel Harrison, avocat ) By videoconference RESPONDENT COUNSEL Director of Criminal and penal prosecutions Mtre Etienne F.

Mongeau ( Director of Criminal and penal prosecutions ) By videoconference IMPLEADED PARTY Procureur général du Québec Absent and not represented DESCRIPTION: Motion for leave to appeal a conviction involving questions of law (Art. 291 and following C.C.P., art. 22 Rules of the Court of Appeal of Québec in penal matters) . Clerk at the hearing : Mélanie Camiré Courtroom: RC-18 HEARING 9:35 Commencement of the hearing. Identification of counsel. Preliminary comments. 9:36 Submissions by Mtre Mongeau. 9:44 Submissions by Mtre Harrison.

9:51 PAR LE JUGE: Judgment will be rendered on the minutes of the hearing and sent to the parties. 9:52 Conclusion of the hearing. Mélanie Camiré, Clerk at the hearing JUDGMENT [ 1 ] The petitioner seeks leave to appeal against a decision of the Superior Court on 8 June 2021 [1] that dismissed an appeal against findings of guilt on two offences under sections 66 and 115.31 of the Environmental Quality Act ( EQA ). [2] [ 2 ]

Article 291 of the Code of Penal Procedure [3] , and the relevant jurisprudence, establish that leave for a second appeal will be granted parsimoniously. It will be refused unless the petitioner identifies a serious question of law that merits the attention of the Court, that the proposed appeal has a reasonable chance of success and that the outcome could significantly affect the administration of the law. [4] [ 3 ] The petitioner claims that articles 22 and 66 of the EQA , as they were at the time of the offences charged, do not apply to “residual materials” intended for reclamation.

This question is not new and the analysis provided in the judgment of the Superior Court is meticulous and comprehensive. The judgment concludes that the activities charged against the petitioner, whether they involved reclamation or elimination, were subject to authorisation by the government and not by a judge. This conclusion, as amply demonstrated in the reasons, is consistent with settled jurisprudence, including decisions of this court [5] .

Accordingly, I conclude that the first two grounds raised by the petitioner have no reasonable chance of success and otherwise fail to meet the criteria for leave established under

section 291 of the Code of Penal Procedure . [ 4 ] The petitioner also claims that the Superior Court did not adequately analyse the defence of due diligence. The Superior Court explains that the burden to prove such a defence on a balance of probabilities lies with the defendant in a case of strict liability and that the petitioner failed to discharge its burden. The court concludes not only that the petitioner failed to prove the defence to the necessary standard of persuasion but failed to produce evidence that could provide a foundation for the defence.

It cannot be argued that the Superior Court failed to analyse the defence of due diligence. It did so conclusively and this ground has no reasonable chance of success in this court. FOR THESE REASONS THE UNDERSIGNED: [ 5 ] DISMISSES the motion for leave to appeal without costs. PATRICK HEALY, J.A.