2011 QCCA 2033, 2011 QCCA 2033

Nadeau c. R. 2011 QCCA 2033 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-005028-111 ( 500-36-005766-111 ) MINUTES OF THE HEARING DATE: November 2, 2011 THE HONOURABLE ALLAN R. HILTON, J.A. PETITIONER ATTORNEY MARTIN NADEAU Mtre Ulrich Gautier RESPONDENT ATTORNEY HER MAJESTY THE QUEEN Mtre Francis Paradis Cour municipale de Montréal

MOTION FOR LEAVE TO APPEAL FROM A JUDGMENT RENDERED ON SEPTEMBER 27, 2011 BY THE HON. JERRY ZIGMAN OF THE SUPERIOR COURT DISTRICT OF MONTREAL Clerk: Annick Nguyen Court Room: RC.18 HEARING 9:33 Commencement of the hearing. Submission by Mtre Gautier. 9:49 Submission by Mtre Paradis. 9:53 Suspension. 10:18 Resumption of the hearing. 10:19 BY THE JUDGE. Judgment – See page 3. 10:21 Conclusion of the hearing.

Annick Nguyen Clerk JUDGMENT [ 1 ] The applicant seeks leave to appeal a judgment of the Superior Court that allowed an appeal from judgments of acquittal entered by a judge of the Municipal Court of Montreal and ordered a new trial on two counts: First, that of impaired driving contrary to sections 253 (

a) and 255

(1) Cr.C. Second, that of refusing to submit to an order to supply a breath sample contrary to sections 254 (5) and 255

(1) Cr.C. [ 2 ] On the first count, the trial judge found on the whole of the evidence that the Crown had not proved the guilt of the accused beyond a reasonable doubt and accordingly acquitted him. [ 3 ] On the second count, in a separate judgment, the trial judge granted a motion for non-suit and acquitted the applicant on the basis of lack of evidence of an order to the accused to submit a breath sample. [ 4 ] The Superior Court judge focused on the latter acquittal and concluded that there was some evidence of an order given by

the police officer named in the count, with the result that the motion for non-suit should not have been granted. He therefore concluded that the judgment of acquittal on the first count had to be vacated since the trial judge did not apply the adverse inference otherwise applicable under sub-section 258 (3) Cr.C. [ 5 ] The applicant's proposed grounds of appeal challenge the Superior Court judge's conclusion that there was some evidence of an order, as opposed to no evidence, as the trial judge found. [ 6 ] In order to obtain leave to appeal from the Superior Court on a

summary conviction offence, the applicant must show that the proposed questions of law to be argued on the merits are sufficiently important to the administration of justice, or that the merits of the proposed appeal appear strong and that even if they are not of general importance, a conviction in issue is serious for the applicant and may expose the applicant to significant deprivation of his or her liberty. [1] [ 7 ] Here, the Superior Court judge did not substitute a verdict of conviction, but simply ordered a new trial.

In any event, the questions raised are not of sufficient importance to the administration of justice to warrant an examination by the Court of Appeal. [ 8 ] Without expressing any opinion as to the correctness of the judgment of the Superior Court, the applicant has failed to show, in the particular circumstances of this case, that he has satisfied the criteria for leave being granted. [ 9 ] The applicant's motion is accordingly DISMISSED. ALLAN R. HILTON, J.A.