2011 QCCA 303, 2011 QCCA 303

Unofficial English Translation Perreault c. R. 2011 QCCA 303 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-10-002620-115 (200-01-142666-100) DATE: February 15, 2011 PRESIDING: THE HONOURABLE FRANCE THIBAULT, J.A. ALAIN PERREAULT PETITIONER – Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix and JOURNAL DE QUÉBEC and TVA and GESCA, LA PRESSE, LE SOLEIL, and RADIO-CANADA IMPLEADED PARTIES – Interveners JUDGMENT [ 1 ] I have before me, as a sole judge, a motion whereby the petitioner seeks leave to appeal from a judgment rendered on February 10, 2011, by the Superior Court, District of Quebec (the Honourable Mr.

Justice Jean-Claude Beaulieu), which authorized the disclosure of a statement recorded on [ translation ] "audio-video" tape that was filed during his trial on first degree murder charges. [1] The petitioner also seeks to stay the effects of the judgment [ translation ] "until the expiration of the appeal period of the verdict to be rendered by the jury".

In a separate proceeding, he has filed into the Court record a notice of appeal in which he seeks to have the trial judgment set aside and to suspend the effects of that judgment for the same period as that indicated in his motion for leave to appeal. [ 2 ] In his motion, the petitioner argues that publishing his statement will have serious consequences. First, his safety will likely be compromised during his travels between the detention centre and the courthouse.

Second, broadcasting the statement will cause him to suffer serious and irreparable harm, whether he is acquitted or convicted: 3.1 The trial judge's judgment is premature because the verdict has yet to be rendered and the appellant-accused's safety remains compromised; 3.2 If the appellant-accused is convicted, the defence will have solid grounds of appeal and the immediate broadcast of the video statement will cause irreparable harm to the appellant, amongst others, if a new trial is be ordered, for example, it will be much more difficult to empanel an impartial jury; 3.3 If the appellant-accused is acquitted, the prior broadcast of the audio-video statement will cause him to suffer serious and irreparable harm; [2] [ 3 ] At the hearing, counsel for the petitioner elaborated.

Although he is not opposed, in principle, to an entire trial being opened to public attention and scrutiny, he fears that, in the present case, the treatment of his statement would cause him irreparable harm particularly if some of the excerpts were to be quoted out of context and without all the evidence adduced at trial being brought to the public's attention. The nature and quality of the media coverage he received during the trial leads him to believe that the public might not be given all the relevant information necessary to judge his guilt or innocence.

In his opinion, this is likely to both compromise his safety and cause him to suffer serious and irreparable harm whether he is acquitted or convicted. [ 4 ] After stating the applicable rules for access to exhibits, referring to the seminal cases on the matter, and applying the relevant test, which is referred to in legal language as the Dagenais- Mentuck test, the trial judge decided in favour of broadcasting the audio-video tape filed at trial after establishing a redaction procedure to protect the identity of the undercover agents involved in the police operation. [ 5 ] The trial judge gave the following reasons in support of his decision:

[ translation ] [25] In the present case, the body of the victim Lyne Massicotte was not found. For about seven and a half years, the accused Alain Perreault has been the object of media attention, especially since he was arrested and charged in 2010. [26] Since 2003, Alain Perreault has denied killing Lyne Massicotte. On January 13, 2010, during a meeting with undercover agents, he recounted how he killed Lyne Massicotte, why he did it, and where he disposed of the body. [27] During the jury trial, however, the accused stated that the statement was a lie resulting from threats and promises.

It is relevant to add that at a voir-dire, the Court declared the audio-video tape of the accused's statement admissible in evidence.

The accused also made other statements that were inconsistent, to say the least, with the version on the audio-video tape. [28] Considering the accused's behaviour while making the statement on the audio-video tape and his multiple prior statements, there is no doubt in the Court's mind that, in the search for the truth, the broadcast sought would have a salutary effect, with respect to the general public, on the voluntariness of the statement and, consequently, on the administration of justice. [Emphasis added.] [ 6 ] We note that the trial judge repeated one of the reasons given by the Supreme Court in Canadian Broadcasting Corporation v.

The Queen : [3] [17] The context of a statement made by an accused person or a suspect in the course of a police investigation is different from that of testimony given in a courtroom. A person who testifies at a hearing usually does so under compulsion of law, pursuant to a subpoena. Witnesses must, to the extent possible, be protected from any external pressure that could influence their testimony. The controlled environment of the courtroom contributes to this objective. The circumstances specific to compelled testimony do not exist in the case of an out-of-court statement.

But if the person who makes the statement knows that it could end up as the lead story on the local or national television news, this could cause him or her to think carefully before deciding whether to make it. Thus, the possibility that the statement will be broadcast could have a negative effect on the search for the truth, but it could also have a salutary effect on the voluntariness of the statement and, consequently, on the administration of justice. [Emphasis added.] [ 7 ] The rules that govern access to exhibits filed in a criminal trial have long been established.

They were reiterated in Canadian Broadcasting Corporation v. The Queen , supra , rendered by the Supreme Court on January 28, 2010. [ 8 ] I will quickly summarize them. Access to the exhibits filed at trial is the corollary of the public nature of a trial, a principle tied to the Charter- protected right to freedom of expression. Public access is therefore the rule.

It is restricted only in cases where the competent court finds, in exercising its discretionary power, that access would subvert the ends of justice or unduly impair its proper administration: [26] The Dagenais test was reaffirmed but somewhat reformulated in Mentuck , where the Crown sought a ban on publication of the names and identities of undercover officers and on the investigative techniques they had used.

The Court held in that case that discretionary action to limit freedom of expression in relation to judicial proceedings encompasses a broad variety of interests and that a publication ban should only be ordered when: (

a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and (

b) the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice. [4] [ 9 ] The burden of establishing that this option is necessary falls to the party opposing the disclosure of the evidence.

The evidence must show a serious threat to the administration of justice. [ 10 ] At the hearing of the motion, the issue of a Court of Appeal judge's jurisdiction over a motion for leave to appeal and to stay the effects of a trial judgment was raised. The petitioner was granted time to prepare his arguments on the issue. On February 11, he informed the Court of his position: [ translation ] ... We inform you that we have not found any specific provisions in the Criminal Code that would allow us to appeal before this Court from the judgment of the Honourable Mr.

Justice Jean-Claude Beaulieu of the Superior Court, rendered on February 10, 2011, regarding the authorization to broadcast our client's audio-video statement. We wish to inform you that we will be bringing proceedings directly before the Supreme Court of Canada pursuant to

section 40 of the Supreme Court Act as soon as possible. In the meantime, we ask that you stay the execution of the judgment of Jean-Claude Beaulieu J., of the Superior Court on the grounds given in our motion, to prevent the broadcast of the audio-video statement and the publication of the written transcripts filed into evidence. [ 11 ]

Section 11 of the Rules of the Court of Appeal of Quebec in Criminal Matters [5] compels the party filing a proceeding to indicate the precise citation to the statute or regulation upon which it is based. At the hearing, counsel for the petitioner was unable to state under which provision of the Criminal Code or any other act he was authorized to submit a notice of appeal or a motion for leave to appeal from the trial judgment to the Court. Let us recall that the appeal is statutory in nature, which means that it must be explicitly

authorized in a legislative provision (s. 674 Cr. C. ). [ 12 ] The Criminal Code does not authorize an appeal from a judgment allowing the broadcast of an exhibit. I am therefore without jurisdiction to grant the petitioner leave to appeal from the trial judgment. This issue has been considered by the Supreme Court, which agreed to hear appeals on similar matters in several cases that were brought directly before it because the Criminal Code did not provide for appeals before an appellate court. [6] [ 13 ] What of the application to stay the effects of the trial judgment during the appeal to the Supreme Court? [ 14 ]

Section 65.1 of the Supreme Court Act [7] permits the stay of a judgment even before the notice of application for leave to appeal is filed if the "court appealed from" is convinced that the party seeking the stay intends to apply for leave and the delay would result in a miscarriage of justice. In the present case, the power to order a stay belongs to the Superior Court, the "court appealed from" that heard the matter. The English version of this provision confirms this

interpretation: “The Court, the court appealed from or a judge of either of those courts…”. [ 15 ] Consequently, I find that I do not have jurisdiction to grant leave to appeal from the trial judgment or to order a stay of execution. FOR THESE REASONS: [ 16 ] DISMISSES the motion for leave to appeal. FRANCE THIBAULT, J.A.

Mtre Stéphane Beaudoin and Mtre Jessie Bérubé Beaudoin, Robert For the Petitioner Mtre Lyne Morais Criminal and Penal Prosecutor For the respondent Mtre Marc Paradis Ogilvy Renault For the interveners Journal de Québec and TVA Mtre Jean-François Côté Beauvais Truchon & Associates For the interveners Gesca, La Presse, Le Soleil, and Radio-Canada Date of hearing: February 10, 2011 [5] Rules of the Court of Appeal of Quebec in Criminal Matters, TR/2006-142 , (2006) 140 Gaz . Can. II, 2113, s. 11.